Sydney County Council v Dell'Oro

[1974] HCA 47

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Stephen, Mason and Jacobs JJ.

SYDNEY COUNTY COUNCIL v. DELL'ORO

(1974) 132 CLR 97

4 November 1974

Negligence

Negligence—Duty of care—Characteristics of person to whom duty owed—Circumstances of risk—Breach of duty—Need for expert evidence of usual practice—Electrical contractor killed by contact with high voltage electricity.

Decisions

November 4.
The following written judgments were delivered:-
BARWICK C.J. An electrical contractor - though himself unlicensed as an electrician - had worked on a consumer's electrical circuits in a city building in Sydney. Having completed his work, he had served the requisite notice on the Sydney County Council to inspect the work. An officer of that Council on the day in question attended the premises and inspected the work, one item of which was found faulty. Part of the work had rendered certain meters surplus to requirements and had caused the need to alter the County Council's supply to other meters. The removal of the surplus meters and the changes in connexion to other meters was work exclusive to the County Council's officer. To carry out this work it was necessary to remove a cover from a box on the wall of a small room in the basement of the building where the meters and the consumer's board were located. This room was usually locked but open this day to enable both the contractor and the Council employee to do their respective work. Within the box the links carrying the incoming supply were housed. Because they were uninsulated and carried electricity at a high voltage, the cover of the box was usually locked and sealed so that no unauthorized person could gain access to the links. The Council's officer, however, needed to effect a connexion from them to the meters. For this purpose he had identified the neutral link - a fact known to the contractor. (at p99)

2. However, he interrupted his work to check the result of the isolation of some of the circuits in the building for which purpose he left the room in which the electrical boards were housed. Before doing so he pointed out to the electrical contractor, whom he believed to be a licensed electrician, that the consumer's board had been loosened from the wall and was resting on the meters hindering the further performance of his, the Council employee's, work. He asked that the board be removed from that position and expected that it would be screwed back to its proper place on the wall. But, whilst the Council employee was absent, the electrical contractor chose to lift the consumer's board away from the meters by attempting to suspend it by attachment by wires to some projections on or from the wall. Having lifted it by a wire secured to the left-hand end of the board, he stood on a chair in order to suspend the right-hand end of the board. To do so, he grasped a water pipe running vertically at some remove beside the electrical installation: but, perchance, his cheek at the same time came into contact with a live link so that he was instantly and fatally electrocuted. (at p99)

3. In an action for damages brought in the Supreme Court of New South Wales by his widow, who was also his partner in the electrical contracting business, against the County Council and its officer to whom I have referred, the learned trial judge refused to direct the jury to return a verdict for the defendants. It had been submitted to him that there was no evidence of negligence on the part of either of them. The jury returned a verdict for the plaintiff in the sum of $40,532. An appeal to the Court of Appeal Division was unsuccessful. Their Honours thought that if it were not unlikely that the electrical power at lethal voltage may become accessible to persons in the vicinity, the defendants, as persons in control of that place where that electricity was, owed a duty to take reasonable care for the safety of such persons. (at p100)

4. But, in my opinion, this generality of expression was misplaced so far as the present case is concerned. The deceased was a tradesman whose work of necessity carried him into close proximity to electrical power at levels which could be lethal. He was aware of the presence of the live links. The Council's officer was not required to take the same precautions with respect to the deceased as he might well be required to take in the case of a member of the public having no special knowledge or concern with the handling of electricity. The question for the trial judge and for the Court of Appeal Division was the precise nature of the relationship between the two tradesmen and of the duty, if any, related to the circumstances which the one, the Council officer, owed to the other in relation to the live links. This was a particular question not to be solved by generalities: it was particular to the operative cause of the injury. It is quite clear that nothing done or omitted by the County Council itself was related to the death of the deceased. It was said, however, that the Council officer was obliged to replace and reseal the cover of the box containing the links as a means of securing the safety of the deceased. But the deceased, a licensed electrician so far as the Council employee was concerned, was not only aware of the position and quality of the links but necessarily accustomed in the course of his tradesmanship to work in the presence and in proximity to such electrical conductors. Further, so far as the Council employee was concerned, nothing which the deceased had to do, including the changing of the position of the consumer's board, was likely to take the deceased into any dangerous relationship with those conductors. If foreseeability is called on to establish the existence of a specific duty on the part of the Council employee, in my opinion, it was not foreseeable that a qualified tradesman would place himself, quite unnecessarily, in fatal proximity to the conductors: and it was the likelihood of the deceased's conduct which would have been in contemplation. It was not a case where the deceased was a member of a class or group of people whose likely conduct might attract a specific duty. In my opinion, the Council employee could not be held to be obliged to replace or reseal the cover of the links box. Further, the Council employee could not be required to inform the deceased of the nature of the links or to warn him of the risks of coming into close proximity to them. In my opinion, the evidence did not permit of the conclusion that the Council employee ought to have taken any step in relation to the exposed conductor, the absence of which was causally related to the death of the deceased. In my opinion, the trial judge ought to have directed the jury to return a verdict for the defendants and the Court of Appeal Division ought to have allowed the appellant's appeal agains the jury's verdict. (at p101)

5. I would allow the present appeal. (at p101)

McTIERNAN J. The action is a claim for damages based on the Compensation to Relatives Act, 1897-1953 (N.S.W.). The plaintiff is the widow of Peter Pascal Dell'Oro (herinafter referred to as "the deceased"). She brought the action for the benefit of their two children and herself. Her case was put in negligence. The declaration in the action contains a count of negligence against the Sydney County Council, and a second count in negligence against Basil Briody. The action was tried in the Supreme Court of New South Wales before a judge and a jury of four. The jury found a verdict for the plaintiff on both counts and a total verdict of $40,532 apportioned as to the plaintiff $22,532, to a daughter $6,000 and to a son $12,000. The defendants appealed to the Court of Appeal. They asked that Court to set aside the verdicts and the judgment in the action. The Court of Appeal dismissed their appeal. The defendants have brought the present appeal against the order of the Court of Appeal. They have taken, by their notice of appeal, a number of grounds. The only ground of appeal put forward in argument was that there was no evidence of negligence on the part of either defendant fit to be left to the jury. They sought from this Court, an order setting aside the verdicts of the jury and the judgment entered for the plaintiff, and, in lieu, an order that the verdicts be for the defendants respectively and judgment for them to be entered in the action. (at p101)

2. The first count of the declaration (against the Sydney County Council) reads thus: ". . . the first-named defendant by itself its servants and agents was supplying electric power to certain premises and was performing certain work on and about certain electrical links in the said premises AND the deceased was working in the said premises in proximity to the said electrical links AND THEREUPON the first-named defendant by itself its servants and agents so carelessly negligently and unskilfully conducted itself in and about the care control and management of the said power supply and electrical links AND in and about exposing the deceased to the risk of coming in contact with the said links and being electrocuted by the said electric power THAT the deceased came in contact with the said links and was so electrocuted..." (at p102)

3. The second count (against Basil Briody) reads thus: ". . . the second-named defendant was performing certain work on and about certain electrical links in certain premises AND the deceased was working in the said premises in proximity to the said electrical links AND THEREUPON the second-named defendant so carelessly negligently and unskilfully conducted himself in and about the care control and management of the said electrical links AND in and about working thereon AND in and about exposing the deceased to unnecessary risk of coming in contact with the said electrical links and being electrocuted thereby THAT the deceased came in contact with the said links and was electrocuted thereby . . ." (at p102)

4. Particulars under s. 6 of the Compensation to Relatives Act, 1897-1953 (N.S.W.) were furnished with the declaration. The particulars read thus: "It is alleged that on the morning of 9th January 1970 the said Peter Pascal Dell'Oro was electrocuted in a room in the basement of Yorkshire House, 14 Spring Street, Sydney when he came into contact with some electrical links which had been negligently left exposed by the second-named defendant while he was acting in the course of his employment by the first-named defendant." (at p102)

5. Particulars under O. X, r. 7A of the Supreme Court Rules (N.S.W.) were also furnished. The only particulars necessary to quote are as follows:

"(b) Failure to replace the cover over the electrical links so as to prevent the deceased, who was working in proximity thereto, from coming in contact with the links. (c) Exposing the deceased to the risk of inadvertently or accidentally coming in contact with the exposed electrical links. (d) Failure to take reasonable care to guard the electrical links so as to prevent persons likely to be working in proximity thereto from coming in contact with them. (f) Requiring the deceased to lift up and fix the switchboard so as to bring him in proximity to the electrical links without taking reasonable care to guard him from coming in contact with the links." (at p102)

6. There is a plea of "not guilty" by each defendant. The plaintiff joined issue on each plea. There are other pleas to the declaration. But the only issues which went to the jury were those raised by the pleas of "not guilty" to the first and second counts respectively. No allegation of contributory negligence on the part of the deceased was made by either defendant. (at p102)

7. The circumstances of the case are described in the judgment delivered by Reynolds J.A. in the Court of Appeal. In short the circumstances are as follows. The deceased was an electrician and a member of a firm of electrical contractors. He was not a licensed electrician, but a member of the firm was. The firm was engaged by a tenant of the premises to provide a panel furnished as a switchboard to be put in a switchroom in the basement of Yorkshire House. The licensed electrician brought the panel to the premises and screwed it temporarily in place. A short time afterwards, the deceased, who was working for his firm, came to the switchroom to make the panel ready for installation. But this could not be done without the approval of the Council. The further work required to be done on the panel necessitated that the deceased should unscrew it from its place. He did this and left it hanging, resting on the Council's meters which were below the switchboard. The Council's electrical links were in a box directly above the switchboard. The links were live conductors and the box had a cover fastened with screws, which prevented the links being exposed. On the day of the accident Mr. Briody, who was the Council's installation inspector, came to the switchroom, accompanied by Robert Fletcher, an apprentice and an employee of the Council, for the purpose, amongst others, of removing some of the meters. The panel was resting on these meters and suspended by wires attached to the back of the panel. Mr. Briody stood on a chair, that was alongside the switchboard, to gain easy access to the links box, in order to take the cover off so that he might inspect the connexions of the links with the meters. It is not clear from the evidence what he did with the cover. Presumably he left it on the floor of the room, but the evidence is silent as to what he did with the screws. Mr. Briody told the deceased that it would be necessary for him to remove the panel from the meters to allow of their removal. The switchboard itself was no concern of Mr. Briody. It was necessary for Mr. Briody to go elsewhere in the premises and before leaving the switchroom he asked the deceased to remove the panel from the meters. Mr. Briody asked the apprentice to stay in the room while he was away. Mr. Briody did not replace the cover on the links box before he left. His Honour the trial judge addressed a question to Mr. Briody regarding the cover which the witness had removed from the links box. The question was: "How long would it take you to slip that back?" Mr. Briody's answer was: "Five or ten seconds, I suppose." What occurred when Mr. Briody left the room was told by the apprentice in giving evidence. He was called as a witness on behalf of the plaintiff. The judgment of Reynolds J.A. contains an account of how the accident happened based upon evidence which the apprentice gave. His Honour's description of it is as follows: the deceased "in complying with Briody's request, did not take the course of screwing the board back into its normal position but decided to suspend it by wire. To do this, he stood on the chair, requesting the apprentice Fletcher to hold the board. He first suspended the board on the left-hand side by affixing the wire to the switchboard and tying it to some metal pipes on the wall. He then proceeded, standing on the same chair, to tie the right-hand side of the switchboard, presumably to some pipes, on the right-hand side. Whilst standing on the chair his face would be at approximately the same height as the live links. Whether he lost balance or whether he inadvertently leaned too far, is not known, but in some way whilst carrying out this task, his left cheek came into contact with an exposed live link at a time when his right hand was on a pipe. This caused current to flow through his body and resulted in his death." It appears from the evidence that Mr. Briody returned to the room immediately after the deceased sustained the electric shock, and made a report of the accident based on what the apprentice told him and what he himself observed. This report is an exhibit in the case and is as follows:

"At about 9.50 a.m. on the 9th January 1970, I arrived at the switchboard in the basement of Yorkshire House, 14 Spring Street, Sydney, where I saw Mr. Dell'Oro lying on his back on the floor near the switchboard and Robert Fletcher who is employed by the S.C.C. was rendering first aid to him. I realized that something was wrong and left the situation as it was. Within a couple of minutes the Central District Ambulance Officers arrived and took over the first aid. Mr. Dell'Oro was later conveyed to Hospital. I then asked Robert Fletcher what had occurred and he informed me that Mr. Dell'Oro had received an electric shock whilst standing on a wooden chair trying to secure the switchboard. I then investigated the safety of the switchboard and found that it was in a safe, but live condition, the live portion of the switchboard was exposed to allow S.C.C. metering work to be carried out. Mr. Dell'Oro was present when I removed the cover at about 9 - 10 a.m. Further investigation revealed that Mr. Dell'Oro had received his shock from the live exposed portion of the unmetered active links, directly above the switchboard."

It appears from this report that the links were exposed for some forty minutes immediately prior to the accident. (at p104)

8. The facts which are alleged in each count, before the allegation of negligence, are put as the basis of a duty of care owed by the defendants respectively to the deceased. (at p104)

9. Reynolds J.A. observed in the judgment he delivered in the Court of Appeal: "There was no demurrer to the declaration. Issue was joined so that, under the common law system of pleading, the existence of a duty, the breach of which was complained of, was conceded. Therefore the real questions for consideration by the tribunal of fact were whether the facts alleged to give rise to the duty were established, and whether a breach had been established causally related to the death. It was for his Honour to direct the jury as to the nature of the duty to which the relationship of the defendants to the deceased gave rise. The substantial submission made to this Court (by the appellants) on the issue of liability is that his Honour erred in law in directing the jury as to the nature and content of this duty. It is conceded (quite apart from the joinder of issue), as I understand the appellants' argument, that some duty arose, but a duty different from a duty to take reasonable care in all the circumstances." Counsel for the defendants submitted to the trial judge that he should direct the jury that the defendants had a duty to take reasonable care to protect the deceased from the danger caused by the neglect of Briody to replace the cover over the electrical links, only if certain conditions were satisfied. These were: "(1) There must be a dangerous condition created on the premises by the defendants; (2) The dangerous condition must be in the nature of a concealed trap or unusual danger to a person of the class of the deceased or type of the deceased; that is an electrician; (3) The deceased was unaware of the danger; (4) The defendants knew or ought to have known that the deceased was unaware of the danger; and (5) That the defendants knew or ought to have known that the deceased was likely to go into close proximity to the danger." The trial judge did not accept the submission. He said that it was a "Donoghue v. Stevenson Case" (Donoghue v. Stevenson (1932) AC 562 ) and that "the principles, not the facts are to be elicited . . . in Thompson's Case (1953) 87 CLR 619, at p 630 ". The case referred to is Thompson v. Bankstown Corporation (1953) 87 CLR 619 . The passage is as follows: "It is the case of an injury through discharge of electricity made possible through the defendant's neglect of due precautions and allowing his system to be in an improper and dangerous condition. That is the basis of the defendant's liability. The true question, as we think, is whether the plaintiff acting as he did falls within the scope of the defendant's duty of care." Early in the judgment in Thompson's Case (1953) 87 CLR, at p 623 it is said that the general law of negligence imposes upon those controlling "an extremely dangerous agency, such as electricity of a lethal voltage", the duty of exercising a high standard of care. It is also said in the case (1953) 87 CLR, at p 629 , "The generation, or receipt, and transmission of electrical energy of a lethal voltage imposed the duty upon the defendant". The ground for imputing fault to the defendant Council in the present case existed in Briody's neglect to replace the cover on the links, such neglect having occurred in the course of performance of his duties in the capacity of the Council's installation inspector. The ground of imputing fault to Briody was that a duty of care, measured by a high degree, rested upon him to prevent injury through discharge of electricity. (at p106)

10. Furthermore, it is said in Thompson v. Bankstown Corporation (1953) 87 CLR, at p 625 , "The case was left to the jury as one where, if the plaintiff was to succeed, they must find negligence and find that what befell was something of a kind which ought reasonably to have been foreseen". The learned judge left the present case to the jury on a substantially similar basis. McClemens J. the trial judge in the present case was the trial judge in Thompson v. Bankstown Corporation. (at p106)

11. But the present case being a claim under the Compensation to Relatives Act (hereinbefore mentioned), the issue of liability is whether the Council and Briody respectively owed to the plaintiff's husband a duty, breach of which would render Briody and through him the Council liable to the deceased in damages if he had not died. It is relevant in testing the existence of this duty to quote a passage from the judgment of Brett M.R. in Heaven v. Pender (1883) 11 QBD 503, at p 509 , and a passage from the speech of Lord Atkin in Donoghue v. Stevenson (1932) AC 562, at p 580 . The first passage is: "whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger." (The italics are mine.) The passage in Donoghue v. Stevenson is: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." (See Hay or Bourhill v. Young (1943) AC 92, at p 101 .) It seems clear that the "acts or omissions" are the alleged acts of negligence, and that Lord Atkin's test of whether the plaintiff was the defendant's neighbour, can only be applied ex post facto. (See Winfield and Jolowicz on Tort, 9th ed. (1971), p. 52.) (at p106)

12. There is no doubt that the facts pleaded in the declaration as to the relations between the plaintiff on the one hand and the defendants on the other gave rise to the legal duty of care - in this case, a duty to exercise the degree of care described in the case of Thompson v. Bankstown Corporation (1953) 87 CLR 619 . The question of liability is whether Briody observed the standard of care required by the circumstances of the case in relation to the deceased. The test or scope of this duty is whether Briody ought to have contemplated as a reasonable man that, if he did not replace the cover on the links, he would cause danger of injury to the deceased, arising from inadvertently coming into contact with the exposed links. Why should not this probability or possibility be regarded as within reasonable foresight? Briody had knowledge of the Standards Association of Australia Wire Rule No. 1.19 which is an exhibit in the case. The heading of the rule is "PREVENTION OF CONTACT WITH LIVE PARTS" and a provision of the rule reads: "The installation shall be so arranged that no person can come inadvertently into contact with live parts." (The italics are mine.) It seems proper to impute to Briody a knowledge that a person working as the deceased was in this switchroom would be apt for one chance reason or another or one means or another to attain some level proximate to the links box higher than his unaided reach from the ground would allow - that is by standing on the chair on which Mr. Briody himself stood in order to remove the cover from the links box. (at p107)

13. In Thompson v. Bankstown Corporation (1953) 87 CLR, at p 630 the following passage was quoted from the opinion of Lord Macmillan in Hay or Bourhill v. Young (1943) AC 92, at p 104 : "The duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed." Also, Lord Atkin's description in Donoghue v. Stevenson (1932) AC, at p 580 was quoted, viz. "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question". It is said in Thompson v. Bankstown Corporation (1953) 87 CLR at p 630 : "In the application of these formulas it is important to avoid the error of confusing the precise chain of circumstances by which the plaintiff incurs the injuries or damage of which he complains with the question whether he, acting as he did, falls within the general description of persons likely to be affected. The exact course which events take can seldom be foreseen in detail." In the light of this dictum it is not crucial to the plaintiff's case that Briody might not have foreseen in detail the exact course which events took; what matters is that, acting as the deceased did, he fell within the general description of persons likely to be affected by Briody's neglect in respect of the links. (at p107)

14. The fact that the deceased was an experienced electrician did not take him out of the scope of persons whom Briody could reasonably contemplate might be affected by his neglect. In Murfin v. United Steel Companies Ltd. (1957) 1 WLR 104, at p 114; (1957) 1 All ER 23, at p 31 Parker L.J. said, "even the most skilled and knowledgeable workman, taking reasonable care for his own safety, may inadvertently come in contact with the bare conductors. In my judgment, once the possibility of a slip or a stumble or a casual act of inadvertence is taken into consideration - acts which may result in injury ranging from burns to death - it is impossible to say that precautions were not necessary." (at p108)

15. It is convenient in deciding this appeal to consider how the learned trial judge put the respective cases of the plaintiff and the defendant to the jury in his summing up. He said:

The plaintiff's case is that Briody, the Council's inspector, removed the cover in the room, that created a dangerous situation, with electricity in a lethal amount being in the area where the deceased was working, near which the deceased was working. Then Mr. Bowie, on behalf of the plaintiff, presses on you that because of this he while doing something that had to be done to allow the Council to do its work was lifting up the customer's switchboard when due to the negligence of Briody, in leaving the cover off, he, Dell'Oro inadvertently came into contact simultaneously with the naked link and with an earth, and Mr. Bowie pressed on you that electricity being such a dangerous thing a reasonable man, in the situation of Briody, ought reasonably to have anticipated the likelihood of danger from this naked link to anyone working in the area, and he says that the first defendant, that is the Council, through its servants knew that work was going on and the second defendant, Briody, through himself knew that work was going on, and that through Briody the first defendant, and to himself Briody, ought reasonably to have anticipated the likelihood of injury by electricity. As a matter of strict law it is not necessary that they should have anticipated the exact accident that happened but the likelihood of an accident with electricity by reason of the doing of work there with that 415 volt link exposed. If with reasonable foresight of danger, Briody left that cover on the ground while the other man was working there then it is competent, no more than competent because it is a pure question of fact for you alone and not for me, for you to say that there had been a breach of duty to be careful by the Council and by Briody in relation to the death of the deceased and causally connected with it, and hence on that basis you would be justified in finding a verdict for the plaintiff. I turn to the defendant's case. The defendant's case is that there was no carelessness at all on Briody's part. Hence if there was no carelessness on Briody's part there was no carelessness on the Council's part, there was no reason to foresee any likelihood of danger there at all. As has been pointed out by Mr. Clarke the duty according to the defendant was the duty which would be owed to a licensed man, a man who was fully competent. There is no evidence here that Dell'Oro was not fully competent. There is evidence that he was not licensed, but, says Mr. Clarke, remembering the duty owed is a duty to a competent man, a licensed man, a man who has gone through the training and examinations necessary to be licensed as an electrician, there would be no reason at all to foresee the likelihood of any danger of any sort to the deceased because he was presumed to be working in accordance with the Act. The duty of the defendant is to a qualified adult, not to a member of the public, not to a child, not to an inexperienced apprentice, but it was the duty owed to one who was presumed to be a qualified adult, and there was no reason to foresee that a qualified adult, fully aware that electricity was highly dangerous, used to working in the way of putting in switchboards and things like that, who knew what the situation was, there was no reason to foresee the slightest risk of danger at all, and Mr. Clarke presses on you there is no breach of duty. In the circumstances of the whole of that equipment was know to Dell'Oro, it was known to him to be live, he was a man believed to be competent and qualified, and there was no reason to anticipate danger and this was a live part which according to reasonable standards of electrical mechanics dealing can be left exposed while work is going on because he says that you are entitled to look at the Wiring Rules laid down by the Standards Association of Australia as being some measure of reasonable standard and that is that live parts may be exposed in a compartment to which only authorised persons have access, and this was a place to which only authorised persons had access, and the only people who had access to it at the material time were the deceased, Fletcher and Briody himself and therefore, Mr. Clarke concludes the argument by asserting you will not draw an inference of negligence because everything that was done here by Briody was done in accordance with reasonable standards." (at p109)

16. It is clear therefore that the point was emphasised before the jury that the deceased was an experienced electrician. But if the learned judge had withdrawn the case from the jury on the ground that there was no failure on Mr. Briody's part to perform the duty of care he owed to the deceased because the latter was an experienced electrician, his Honour would have fallen into error. (at p109)

17. It was argued before us for the appellants that the deceased had put himself outside the scope of any duty of care owed to him by setting about suspending the panel instead of attempting to screw it in place again, for the reason that it was not reasonably foreseeable that he would do the former rather than the latter. In order to support this submission reference was made to the evidence in chief of Mr. Briody to the effect that he expected the deceased to do the latter. It cannot be assumed that the jury accepted such evidence. There is abundant evidence on which the jury could have found that Mr. Briody might not have considered that the only possibility or probability would be that the deceased would screw the panel to the wall. The evidence dealing with this matter is as follows: (at p110)

18. In examination-in-chief: "Q. Before you left did you speak to Mr. Dell'Oro and ask him

to do something?

A. I asked him to lift the customer's switchboard off our meters, so that they could be removed.

Q. Apart from asking Mr. Dell'Oro to lift the customer's switchboard off your meters, did you say anything else to him?

A. Not to my knowledge. I do not think I did. Q. How did you expect him to secure the switchboard above your meters?

A. I would have expected him to refix the customer's switchboard on the screws which had held it in position normally." In cross-examination:

"Q. Did it in fact constitute a facility for the Council officer, who had to have that task, that the board was off its screws to give access behind it?

A. It helped but it was not the Council officers - it was not taken off for Council officer's assistance.

Q. Was not this the reason why before the board - putting the board back on its screws would have hindered your task or the task of the connecting officer?

A. Yes, slightly. Q. So in leaving this board off, if it is to be left off the screws, it had to be supported on either side suspended while your operation took place?

A. It did not have to be suspended. Q. What else was there? A. It could have been screwed back on to the existing screws. Q. That would have hindered the connecting officer's task? A. Yes, possibly. Maybe, maybe not. Q. If he did not put it back on the screws, then suspending it on wire was the most likely thing that he would do as a temporary measure. Is that not right?

A. He could have done anything. Q. What is the most likely thing he would do? Suspend it on wires, is it not?

A. I would have screwed it back in position if it was me. Q. If you were not doing that and you wanted to leave it off to facilitate the connecting officer's task, suspending on wire was the most likely course?

A. Yes.

Q. You see, I asked you wasn't it most likely that he would have suspended the board on wires if he did not put it back

on the screws? A. That is right. Q. And you agreed, did you not, that that was the most likely thing?

A. Yes. Q. And then I asked you that in order to suspend it by wires wasn't it most likely that in order to do it at the appropriate height he would need to stand on something like the chair in order to gain that height. Isn't that right?

A. That is --- Q. You say that is not the question that I asked you before? A. Yes, that is right. Q. What is your answer to that? A. He would have had to use a chair to fix the wiring on to the portions of the pipe that he did affix the wiring to.

Q. And that is where you would have expected him to have to get to with a chair; isn't that right?

A. With a chair, yes, or something. Q. Well, the chair was the only thing that was available there to stand on; is that right?

A. Yes. Q. So that if he was going to get up to that height then he would have stood on the chair as the most likely thing, is that right?

A. Yes. Q. And if he was going to work on the pipe on the right-hand side attaching the wire to the pipe on that side, then his head while he was standing on the chair would necessarily have been in proximity to these exposed links?

A. Yes. Q. And if through inadvertence or through losing his balance or for some like reason his face should come in contact with those links he was in grave danger of electrocution, is that right?

A. Of electric shock. Q. And if his face came in contact with that link while he was in contact with the pipe attaching the wire, then from the link through his face, through his left hand if that were touching the pipe would constitute a circuit through to earth?

A. Yes." (at p111)

19. In my opinion a verdict that the death of the deceased was caused by the negligence of each of the defendants was open to the jury. (at p111)

20. I would dismiss the appeal. (at p111)

STEPHEN J. I have had the advantage of reading the reasons for judgment of Mason J. and of Jacobs J. and agree that this appeal should be allowed. I consider that, for the reasons stated by Jacobs J., the evidence did not disclose the absence of reasonable care on the part of the appellant Briody; I am also in agreement with all that has been said by my brother Mason in separate reasons. (at p111)

MASON J. I have had the advantage of reading the reasons for judgment prepared by Jacobs J. I agree that the appeal should be allowed and with the reasons given by his Honour for the conclusion that in the circumstances which existed there was no evidence of a lack of reasonable care on the part of the appellant Briody, the officer of the appellant Council who had control of the electricity mains supply including the links box, for the deceased Dell'Oro. (at p112)

2. The principal facts have been related in his Honour's judgment and I need not repeat them. Two additional matters should perhaps be mentioned. (at p112)

3. The site of the fuse board on the wall of the electricity supply room, immediately below the links box, was approximately at eye-level. The fuse board was held in position against the wall by at least four screws which were inserted at the ends of the board to which the fuses were affixed. Two of the screws were in close proximity (at a distance of not less than eighteen inches) to the links box and to vertical steel pipes on the wall of the room. It was inevitable that a person in restoring the fuse box to its proper position would have his hands in close proximity to the live wires carrying 415 volts and that this circumstance would have been apparent to Briody. (at p112)

4. The next matter is that s. 24 of the Municipal Council of Sydney Electric Lighting Act, 1896-1970 (N.S.W.) provides, inter alia, that

"no person shall be at liberty to cut, connect, tap, fix, alter, remove, or tamper with any electric line, lamp, meter, or fittings used in connection with the supply of electricity by the Council unless authorised in writing by the Council or its agents duly authorised in that behalf: Provided that nothing in this section shall affect the lawful exercise of any power in that behalf vested in any competent person or public authority."

The evidence does not suggest that the deceased had any authority, written or otherwise, from the Council or Briody to replace the wooden cover of the links box, although he had authority to deal with the wiring which led from the meter to the fuse board. Certainly the deceased did not come within the proviso. I approach the case, therefore, on the footing that Briody removed from the links box the wooden cover which provided a shield between the live electric wires and persons working in the room and that he alone had authority to replace it, the deceased having no authority so to do. (at p112)

5. The real issue, as it appears to me, is as to the standard of care which ought to have been expected of Briody having regard to his relationship with the deceased in the circumstances which prevailed. (at p112)

6. Briody, having removed the cover and thereby exposed the live wires, requested the deceased to get the fuse board out of the way, which would involve restoring it to its proper position on the wall. The restoration of the fuse board would, as Briody knew, involve the deceased using his hands in close proximity to those wires and to the adjacent steel pipes. The work to be done therefore involved some element of risk to the person undertaking it, unless some step was taken to guard against the risk. Briody no doubt intended that the deceased would undertake the work without replacing the wooden cover as he would have been aware that the deceased had no authority to replace it. (at p113)

7. In considering whether there was evidence on which the jury could conclude that Briody was negligent in relation to the deceased, the crucial factor lies in the significance to be given to the deceased's character as a competent electrician or, more accurately, in Briody's reasonably founded belief that he had that character. But for this circumstance there would be little doubt that there was evidence from which it could be inferred that there was a failure to take reasonable care for the deceased's safety. Having regard to the proximity of the live wires, the steel pipes and the screws in the fuse board there was a foreseeable risk of injury to a person restoring the fuse board to its former position if the cover of the links box was not replaced. The fulfilment of the risk entailed a consequence of fatal injury and the replacement of the cover was a precaution easily taken. It has often been said that the degree of care to be taken is proportionate to the risk involved and it has likewise been said that a special responsibility exists to take care in relation to dangerous things and operations. (at p113)

8. But here the deceased was a competent electrician aware of the source of potential danger. Where the breach of duty alleged consists in failing to safeguard a plaintiff who is an expert tradesman from a danger of which he is aware and with which he is accustomed to deal in the course of his trade, the defendant is entitled to assume that the plaintiff will conduct himself in accordance with his skill and experience and without negligence unless common sense and knowledge of human affairs dictate otherwise. (at p113)

9. The evidence is silent upon the question whether a competent electrician in the situation in which the deceased found himself could and should have taken steps to insulate himself from the danger of electrocution while restoring the fuse board to its proper position. One imagines that some step of this kind could and should have been taken. Likewise the evidence says nothing as to the practice observed by electricians placed in the position in which Briody found himself. (at p113)

10. I agree with Jacobs J. in thinking that the absence of evidence as to what was proper practice on the part of Briody was in the circumstances fatal to the respondent's case. The standard of care to be expected of Briody depended in some measure on the ability of the deceased as a competent electrician to protect himself from the risk of electrocution in the work which he was undertaking. In my opinion evidence as to these matters was essential to the drawing of an inference that Briody was negligent in the circumstances. (at p114)

11. There are many cases in which a failure to take reasonable care for the safety of another may be inferred in the absence of expert evidence where as a matter of common sense and common knowledge it is possible to conclude that a particular act or omission will give rise to a foreseeable risk of injury of another (see Hamilton v. Nuroof (W.A.) Pty. Ltd. (1956) 96 CLR 18 . This is not such a case. It involved the conduct of skilled tradesmen in relation to a danger arising from electricity. As such it required expert evidence. Without such evidence it could not be inferred that the failure to replace the cover involved a foreseeable risk of injury to the deceased. (at p114)

12. It goes almost without saying that the precise manner in which the deceased met his death was not foreseeable. The means by which the deceased chose to suspend the fuse board above the meters, by suspending them by wires from the steel pipes, was an entirely unexpected mode of compliance with Briody's request. (at p114)

13. In my opinion the appeal should be allowed. (at p114)

JACOBS J. The respondent for the benefit of herself and her two children sued the appellants, claiming compensation under the Compensation to Relatives Act, 1897 (N.S.W.), for the death of her husband, alleging that he was killed by the negligence of the appellants. The trial was held at Sydney in March 1973 before McClemens J., Chief Judge at Common Law, and a jury of four, and at its conclusion the jury returned a verdict for the respondent in the sum of $40,532, apportioned between the plaintiff and the two children. The appellants appealed to the New South Wales Court of Appeal but that appeal was dismissed. They now appeal to this Court. (at p114)

2. The deceased Peter Pascal Dell'Oro was an electrical contractor carrying on business in partnership with the respondent and with a licensed electrician, Mr. A. L. Reynolds. The firm had an electrical contractor's licence but, although the deceased did some of the electrical work himself, he was not licensed as an electrician and therefore could or should only do such work under the personal supervision of a licensed electrician. (at p114)

3. The firm was engaged to carry out various alterations to electrical work in the building Yorkshire House in Spring Street, Sydney. Prior to the day of the deceased's death, 9th January 1970, certain work had been done to the electrical lay-out in order to separate the supplies of electricity to the basement and the ground floor. In addition it was proposed to do away with a previous separation of supply for air conditioning from other supply. (at p114)

4. The work had involved a reorganization of the switchboard or switchboards. These were situated in a small room in the basement of the building about five feet by four feet in size. This room was normally kept locked. It contained the switching gear, the meters, and the fuses and subsidiary switches, the familiar apparatus of electricity supply. Current was brought to the building by 415 volt supply and through a main switch for the whole building went to a 415 volt links box. From there it was taken at 240 volts to the meters and from the meters to the various fuses and switches to the consumer's various outlets. In this room the switchboards were arranged as follows. On one wall the top installation was the links box. Then immediately below it was the fuse board and below that again was the meter board. Thus supply went from the links box, behind the consumer's fuse board, to the meters and then up from the various meters to the fuse board. The links box and the meter board with its meters were the property of the appellant Sydney County Council, and it alone had access to them. Ordinarily the cover of the links box and the various meters would be sealed so that no supply could be drawn off except at a supply point beyond the meters. The reason is obvious. (at p115)

5. From the consumer's board the Council would with wires provided by the contractor link up the fuse board to the meters and the meters to the links. Work after the meter points and at and beyond the fuse board is the responsibility of the electrical contractors engaged by the consumer or consumers. (at p115)

6. Thus the work being done on the premises required a reorganization of the wiring between the links box and the meters in order to separate the metering of basement and ground floor supplies and in order to remove the three meters which had become superfluous as a result of the air conditioning supply becoming part of the general supply. All this was work which would be done by the officers of the Sydney County Council. Then the consumer's fuse board had to be rewired in whole or in part in order to separate the supply of current to the basement and the ground floor. This work had been done and a "Ready to Test" certificate had been sent to the Council, so that after the test had shown the work to be satisfactory the current could be supplied along the proposed new lay-out by linking links to meters and meters to the consumer's fuse board. (at p115)

7. Therefore, on 9th January 1970, the appellant Mr. Briody, an officer of the Council, came to the premises for two purposes. First, he was there to test the work which had been done by the electrical contractors and then he was there also to rewire the meters and to remove the superfluous ones. He removed the wooden cover of the links box after breaking the seals and worked out which wires connected the links with the superfluous meters. The links are copper bars about nine inches long arranged vertically. There were four of them, three live and one neutral, and, in the presence of the contractor, Mr. Briody identified the neutral link. He did some work on the meter box and then went with the deceased to the ground floor to identify a faulty power point which had shown up in the testing. They returned to the switch room and Mr.Briody did some further work. He then switched off the power to the ground floor so that he could test that all the lights on that floor were connected to the now separate ground floor supply. Before leaving the room to carry out this test he pointed out to the deceased that the consumer's fuse board was disconnected from the wall - no doubt because work was being done by the contractor on the wiring behind it - and that it was hanging down by the weight of the wires and resting on the meters of the meter board immediately below it. It was impeding his work on the meter board and he required that it be got out of his way. He expected that it would be re-screwed to the wall in its proper place. He went off leaving the wooden cover off the links box. (at p116)

8. When Mr.Briody returned the deceased had died from electrocution. Instead of re-screwing the consumer's fuse board to the wall he had taken some wire and had attempted to support the board off the meters with pieces of wire attached to objects on the wall above the fuse board. He had lifted up the left-hand end of the board and had attached it to something, probably a water pipe. He had then apparently set about attaching a wire to the right-hand end of the board from water pipes which ran down the wall. He had climbed on a chair in the room and his cheek had touched one of the links. A circuit was made by his hand touching one of the pipes and he was electrocuted. Mr.Fletcher, who was assistant to Mr. Briody, had been in the room throughout but he did not observe exactly what the deceased had been doing immediately prior to his death. The first he knew of the accident was when he found that the deceased was frozen in the circuit which had been made. With insulation to his own body he brought down to the floor the body of the deceased. (at p116)

9. The negligence alleged against the appellants was defined by counsel for the plaintiff at the trial as follows:

"Leaving the link gear exposed where it may reasonably be anticipated that a person in the situation of the deceased, working there, would be likely to come into contact with it."

Appellants' counsel applied for a verdict by direction on the ground that there was no evidence of negligence but this was refused by the trial judge. He also asked for certain directions on the particular duty of care owed and submitted that the jury should be directed that the duty of care only arose if the following conditions were satisfied:

"(1) There must be a dangerous condition created on the premises by the defendants. (2) The dangerous condition must be in the nature of a concealed trap or unusual danger to a person of the class of the

deceased or type of the deceased; that is an electrician. (3) The deceased was unaware of the danger. (4) The defendants knew or ought to have known that the deceased was unaware of the danger.
(5) That the defendants knew or ought to have known that the deceased was likely to go into close proximity to the
danger." (at p117)

10. The trial judge declined to give these directions. (at p117)

11. On the appeal to the New South Wales Court of Appeal it was submitted that there was no evidence of negligence and that, if there was, the special direction on the duty of care which had been asked for at the trial ought to have been given. The appeal was dismissed. On the hearing of the appeal to this Court no ground of appeal based on the failure to give the special direction has been pressed. The only grounds which have been argued are that no duty of care was owed and that if there was such a duty there was no evidence of breach of that duty. (at p117)

12. That some duty of care was owed can admit of little doubt. The sheer propinquity of the work-places of the deceased and of Mr. Briody leads to the conclusion that each was under some duty to exercise reasonable care for the safety of the other. When proximity of the injured person is found to the place where the act or omission of a defendant occurs which may be held to be the cause of the injury then it is very likely that a duty of care will be found in law to exist and that is no doubt so in the present case. (at p117)

13. The New South Wales Court of Appeal based its conclusion upon the view that the duty of care could be expressed as follows:

"if a person, having the control and supervision of electrical power of lethal voltage brings about a situation whereby it is not unlikely that it will be accessible to persons in the vicinity or who he may reasonably anticipate may come into the vicinity, then a relationship is shown to exist giving rise to a duty to take reasonable care for their safety." (at p117)

14. It must be observed that this enunciation of the duty of care says nothing of any particular characteristic of the person to whom the duty is owed except that he may be or be reasonably anticipated to be in the vicinity of the danger nor of any circumstances surrounding the existence of the danger. But it is not sufficient to stop at such a generalized enunciation of a duty of care and to say that therefore it was a question of fact for the jury whether it was a lack of reasonable care to leave the cover of the links box off. That might well be so if the duty of care was that owed to persons generally in a place to which persons generally had access or to which members of the public generally might be expected to gain access, as was the case in Thompson v. Bankstown Corporation (1953) 87 CLR 619 and Southern Portland Cement Ltd. v. Cooper (1974) AC 623; (1973) 129 CLR 295 . But that was not this case. (at p118)

15. A consideration of the particular relationship between electrical contractor and Council testing officer and of the particular circumstances in the switchroom is on the approach in the appeal court left wholly as a question of fact for the jury to which they might give as much or as little weight as they thought fit. If the duty of care could be expressed as generally as it was expressed in the appeal court then it might be correct, as was there found, that there was evidence upon which the jury could find a breach of the duty so expressed. But, with respect, the duty could not be expressed in those general terms. The duty was a duty of an electricity authority and its officers to an electrical contractor believed to be licensed and fully competent and who was working in an electricity supply plant room with knowledge that the main electricity supply was switched on. The learned trial judge directed the jury that the nature, extent and the limits of the duty were questions of law for him but he later directed them that the duty "according to the defendant" was the duty which would be owed to a licensed man, a man who was fully competent. This, so far as it went, was in my view a correct direction but the words "according to the defendant" should not have been added. The jury might well have thought that the determination of the duty of care lay within their province despite the earlier direction. But no point has been taken on this at the trial or on the appeal to the New South Wales Court of Appeal. (at p118)

16. The duty requires the further definition which I have set out both in order to determine whether there was any evidence of its breach and in order to see whether the jury received proper direction on the appropriate duty of care. A duty to take care does not exist in the abstract. "The duty of care, which is the prerequisite to success in an action of negligence to recover damages for personal injuries, is a duty which the law imposes upon a party by reason of his relationship to another in the circumstances of the case.": Smith v. Jenkins (1970) 119 CLR 397, at p 400 , per Barwick C. J. Until the nature or quality of the duty is so defined it is not possible to say whether reasonable care has been taken to fulfil that duty of care which is owed. The law thus defines the persons to whom the duty of care is owed and the circumstances in which it arises. It is breach of the duty of care to a person in the defined relationship and in the defined circumstances which is actionable. Generally there is no dispute of fact in an action on the existence of the particular relation or of the particular circumstances. If there is such a dispute then it is a question of fact to be determined by the tribunal of fact. The simplest example can be taken from the running-down case. Was the defendant the driver of the motor vehicle? Was the motor vehicle being driven on a public highway? But such disputes of fact are to be distinguished from the usual disputes of fact which are relevant not to the establishment of the duty of care or its definition, but to the issue whether there has been a breach of the duty of care, an issue which, if there is an issue of liability, ordinarily involves questions of fact on the standard of care for which the occasion called and on the question whether the acts or omissions of the defendant show a failure to observe that standard. (at p119)

17. If the starting point is that a duty of care is owed to any person to whom it may be found as a fact that the lethal power supply is accessible as a result of him being in the vicinity or foreseeably likely to come into the vicinity then no doubt any person in the vicinity might be found to have the lethal power supply accessible to him and to be likely to be injured or exposed to the risk of injury by the leaving exposed of the links. The same duty would be imposed as a matter of law in respect of all persons in the vicinity or likely to come into the vicinity. This was the view of the appeal court but with respect I do not think that it is correct. It is necessary as a matter of law to define the persons to whom the duty is owed and the circumstances in which such a person must be placed; then in fact it is breach of a duty to take care for the safety of such a person in such circumstances which constitutes negligence and provided that there is some evidence of breach of that duty the jury must be directed in terms of that duty. (at p119)

18. There appears in this case a misconception of the question which falls to be determined by a jury where there is evidence of negligence to go to the jury. The question for the jury is not primarily whether there is a reasonably foreseeable risk of injury with a consequence that if there is such a risk then a defendant owes a duty to take reasonable care to remove or to diminish it. When a duty of care to a particular person in particular circumstances is found to exist then the performance of that duty requires that a defendant does not do any act or omit to do any act which a reasonable man would not do or would do whereby injury is likely to be caused to the particular plaintiff in his particular circumstances. The particular expression of the duty by relating it to the person and the circumstances in no way involves the translation into the enunciation of the duty of care of the acts and omissions which may in the particular case be found to be breaches of the duty. It is always a question of fact and never a question of law whether a particular act or omission is a breach of the duty of care. It is always a question of fact whether the act or omission was one which a reasonable man would not or would omit to do. It is inevitable that a tribunal of fact which seeks to answer this question will bear in mind whether the act or omission is or is not foreseeably likely to cause injury, but that inquiry remains subordinate to the general inquiry whether the act or omission shows a lack of that reasonable care which the relevant duty of care imposes. Further, it is a different inquiry on foreseeability from that undertaken by the Court in the course of determining whether any and, if so, what duty of care should be held as a matter of law to exist in that situation. It is foreseeability in the last-mentioned sense to which Lord Atkin was referring in his famous words in Donoghue v. Stevenson (1932) AC, at p 580 . He was formulating a general principle which may be usefully applied in determining whether in a novel situation a duty of care should be found in law to exist. He did not say that in all situations where there was a reasonable foreseeability of injury a duty of care arose nor suggest that such foreseeability, in the context which he was considering, was a question of fact in each case. Indeed, it is useful to bear in mind that the duty of care enunciated in Donoghue v. Stevenson (1932) AC 562 was no general duty of care in the abstract but a duty related to the particular circumstances of the plaintiff. The duty of care of a manufacturer to a consumer in respect of defects in goods was limited to those cases where there was no opportunity of intermediate inspection. Cases such as Daley v. Gypsy Caravan Co. Pty. Ltd. (1966) 2 NSWR 22; (1966) 40 ALJR 457 , referred to by Reynolds J.A. in his judgment in the appeal court, can only be properly understood if the difference between the matters which go to the existence of the duty of care and the matters which provide evidence of the breach of that duty is clearly comprehended. (at p120)

19. When the duty of care is correctly formulated in the instant case, it becomes clear that there was no evidence of a breach of duty fit to be considered by the jury. It is not sufficient that it might be found as a fact that the leaving of the links uncovered by Mr. Briody brought about "a situation where it is not unlikely that it will be accessible to persons in the vicinity or who he may reasonably anticipate may come into the vicinity". The question is whether the leaving of the links uncovered was an act showing a lack of reasonable care for the safety of the deceased who was believed to be a fully competent and licensed electrician and who knew that the exposed links carried live current at 415 volts. The fact that the deceased was not himself licensed is by the way. Mr. Briody had every reason to believe that he was because he should not have been doing the work unsupervised if he was not. There is no dispute that he was holding himself out as a licensed and fully competent electrical contractor. (at p120)

20. The danger of electrical mains current is generally known in the modern world and those trained in working with it live in constant exposure to the danger from it if they do not take the precautions which are part of their everyday working life. It is an expert field and before it could be said that in the context of that expert field the leaving of links exposed is unreasonable some evidence would be necessary that to do so was a departure from usual practice or exposed even a qualified man to a risk which was not part and parcel of the work which he did day by day. There was no such evidence. (at p121)

21. The respondent based her case on the proposition that there was an exposure to danger which could easily have been removed by replacing the cover but the ease of removing the danger does not provide evidence that steps should have been taken in the circumstances to remove it. Both the deceased and the Council officer, Mr. Briody, were operating in an expert field. There was no evidence that the danger was unusual or that it was not apparent to the deceased as an expert. In these circumstances it was in my opinion not open to a jury in the absence of specific evidence on the matter to find that the leaving of the links uncovered was something which showed a lack of reasonable care for the safety of the deceased man. The appeal should be allowed with costs, the order of the New South Wales Court of Appeal dismissing the appeal with costs should be set aside, the verdict should be set aside and in lieu thereof a verdict should be entered for the defendants. (at p121)

Orders

Appeal allowed with costs.

Order of the Supreme Court of New South Wales (Court of Appeal Division) set aside and in lieu thereof order that the appeal to that Court be allowed with costs, that the verdict and judgment entered for the respondent be set aside, and that verdict and judgment be entered for the appellants.