Telfer & Anor v Flinders Ranges Council & Ors (No 2) No. Scgrg-95-815 Judgment No. S117

TELFER & ORS v THE FLINDERS RANGES COUNCIL
(formerly THE DISTRICT COUNCIL OF HAWKER) and SEARLE;
ETSA CORPORATION, Third Party (No 2)
[1999] SASC 117

Olsson J

Preliminary

In this action the plaintiffs sued the defendants for damage sustained by them as a consequence of a fire (“the subject fire”) which occurred on 25 November 1991. The conductor of the Eagle Hill single wire earth return extension, near Hawker, became detached from its insulator, fell to the ground, ignited dry vegetation and spread to the plaintiffs’ property. The proceedings were brought as a representative action, intended to encompass similar claims by other persons across whose properties the subject fire progressed.
The first defendant (to whom I shall refer as “the Council”) instituted third party proceedings against ETSA Corporation (“ETSA”), claiming damages from it based on various causes of action; and also indemnity or contribution in respect of the plaintiffs’ claim.
Shortly before trial the plaintiffs and the defendants arrived at a settlement on the issue of liability. After discussion it was directed that the question of quantum of damages (as to which the parties were not then ready to proceed) should be stood over for a time, whilst the issue of liability arising between the Council and ETSA should proceed to trial.
These reasons are, therefore, confined to the third party issue.
The trial of that issue spanned a substantial period of time and involved consideration of oral testimony spanning some 3278 pages of transcript and a very large quantity of documentary and other exhibits. I also had the benefit of a view of the general scene of the fire, some segments of the relevant electricity distribution system and the general terrain traversed by that system.
Three further views were taken at the ETSA training compound at Angle Park, where various line fixation techniques or situations were displayed and/or demonstrated. The second view took place during the cross examination of the witness Henley, a former electrical supervisor of the Council, for the purpose of facilitating the questioning of him concerning certain aspects of his evidence in chief. An attempt was made, at that time, to simulate situations depicted in certain of the photographic evidence. The third view occurred shortly prior to the conclusion of the ETSA evidentiary case.
Because the relevant critical history of events extended back over a period in excess of twenty years it was to be expected that the memories of certain of the witnesses would be either defective, or even erroneous, as to some details.
However, it seemed to me that, except where I shall otherwise comment, most witnesses attempted, honestly, to assist me to the best of their ability. In many instances any deficiencies in reliability were the product of faulty memory, rather than deliberate prevarication. To some extent it has been necessary to rely upon objective, documentary evidence as an aid to reaching a firm determination as to what was the true factual situation.

Relevant history

The historical summary which is attempted in these reasons is either common ground or indisputable fact on the evidence or, alternatively, my distillation of the net effect of the evidence. So far as possible I will express my findings in a narrative fashion. I will not embark on a detailed analysis of the various aspects of all witness and other objective evidence, except where it becomes necessary or desirable for specific purposes. My failure to do so does not reflect a lack of consideration of everything that has been put before me. On the contrary, I have carefully considered all of it.
At all relevant times that segment of the Council then known as the District Council of Hawker was the local government body responsible for a district surrounding the small township of Hawker, which is situated north of Quorn in the South Flinders Ranges. More recently it has become amalgamated into the larger local government area known as The Flinders Ranges Council which, by statute, has assumed all of its assets and liabilities.
The township currently has a population of approximately 400 persons. It is not suggested that, at the time of the subject fire, its population was significantly greater.
In these reasons, except where a contrary intention appears, I will use the expression the Council primarily in the sense of the former District Council of Hawker, but as also encompassing the present defendant where appropriate.
For several decades prior to 1974 reticulated 240 volt electricity was not generally available to residents and land holders throughout the Council area. Outside of Hawker itself it was originally necessary for residents to generate their own power, usually by means of 32 volt generating plants.
However, 240 volt electricity was available to residents and occupiers of business premises within the confines of the township of Hawker. This was produced by the Council itself, by means of engine driven generators, in the context of what was, essentially, an independent electricity undertaking conducted by it, from a depot in Heysen Avenue.
A scheme erected by legislation, which was originally administered by the Minister of Local Government (“the Minister”), authorised the provision of funding to enable this enterprise to be conducted on a viable basis. He granted appropriate approvals for loan raisings and repayments and financial subsidies, on the advice of ETSA. I shall return to a consideration of that statutory scheme in more detail in due course.
The evidence indicates that, by 1974, the Hawker township electricity undertaking was under considerable pressure, with growing demand outstripping capacity to supply. At the time the Council was operating one Caterpillar 200 KVA plant and one Dorman 500 KVA plant.
In late 1974 it became apparent that either funding for additional generating plant, or the obtaining of a supply of bulk electricity from ETSA was required.
An initial examination was conducted by ETSA as to the viability of a proposal to extend the electricity supply to properties in the Hawker area. At the conclusion of these preliminary examinations it provided advice, by way of letter dated 23 July 1974, to the Council that it was practicable to connect to the Council electricity undertaking. The discussions with ETSA as to what ought to be done occupied a considerable period of time. The problem was not resolved until 1977, when ETSA constructed a line from its sub-station at Neuroodla to Hawker, to supply bulk electricity to the Council.
The Council still retained responsibility for electricity reticulation within its area, there being a surcharge to consumers, which was generally applicable to supply of electricity in country areas, above normal metropolitan ETSA rates.
The Council was, under the relevant legislation, permitted, on the recommendation of ETSA to the Minister, to raise funds with which to extend the electricity reticulation system to properties throughout its district. Within approximately twelve months of connection to the ETSA bulk supply, significant lengths of single wire earth return (SWER) conductors had been erected by a major contractor named Cowell Electric Supply Company Ltd (“Cowell”). In March 1977 Cowell contracted with the Council for the construction of approximately 250 kms of SWER line, a significant portion of which was in rugged, fairly inaccessible terrain.
As appears from exhibit D148, the drawings and specifications for the survey and construction of the initial SWER extensions from Hawker were prepared by ETSA at no charge to the Council. It was also ETSA which recommended an approach to Cowell to invite it to tender for the work, although the decision to let the tender was that of the Council.
ETSA further supplied its technical E-book content and at least some Distribution Instructions to the Council in late 1977 or early 1978, to guide it in its activities.
The witness Searle was able to speak of historical arrangements which existed both before and after the connection of the ETSA supply. He was a patently honest and articulate person. I was most impressed by him as a commonsense and generally helpful witness. He freely admitted to some deficiencies in memory of certain events which occurred many years ago. However, he had a good recollection of most occurrences. I have no hesitation in accepting the general thrust of his testimony, save where it is clearly shown to be inaccurate.
Searle is now 59 years of age. He has worked in the country for virtually all his life. He grew up on a farm and acquired practical knowledge of mechanical and electrical skills prior to the time when any trade licensing requirements came into existence.
He had, prior to 1974, acquired sufficient practical knowledge of the electrician’s trade to probably qualify him for initial registration (when this was first introduced by statute), although he did not ever bother to seek that status.
In the early 1970s, Searle took over and conducted the garage business in Hawker. At that time the Council operated its own power generation plant at the depot in Heysen Avenue.
In 1974 Searle became aware of the fact that the person who was running the power generation plant was retiring. He applied for the position, in conjunction with an electrician named Thornton, who also resided in the town. That application was successful.
Thornton was a qualified and experienced linesman, who had, at an earlier stage, been employed, as such, by both ETSA and the BHP at Whyalla.
As time went by Searle learnt much of the linesman’s skills from Thornton on the job, by working with him. It is clear, on the evidence, that Searle has a considerable practical competence and experience in this type of work.
Searle testified that, in exchange for retainers paid to Thornton and himself, they jointly accepted responsibility to maintain the town power supply 24 hours per day, seven days per week. They regarded themselves as independent contractors. No taxation instalments were retained from payments made to them. The arrangement between the two of them was that Searle would, in the main, attend to the mechanical operation of the plant, whilst Thornton would look after what was referred to as “the electrical side”. However, each appears to have assisted the other, when the need arose.
It is clear that the parties to the arrangement signed a “contract” at the time, which operated for an initial term of three years from 29 November 1974, with the possibility of renewal.
That “contract” specified the responsibilities to be discharged. It read as follows:-
“DISTRICT COUNCIL OF HAWKER
R.W. TRINDER, Clerk  POSTAL ADDRESS
Phone: Hawker 11.  BOX 17,
HAWKER, 5434
TO WHOM IT MAY CONCERN
This contract is entered into by the first part by the District Council of Hawker, of Hawker, and the second part by Hedley Roger Searle and Keith Thornton, both of Hawker. The conditions as set out hereunder are to apply for a term of three years as from the 29th day of November, 1974, with a right of renewal if so desired.
It is mutually agreed that the following conditions shall apply:-
1.     Maintenance and servicing of all diesel engines and alternators.
2.     Maintenance and works appertaining to all existing overhead lines and distribution from the power supply depot to the facia of the consumers residence.
3.     Inspection of new, or alterations and additions to consumers services, by the second part.
4.     Power supply to be maintained continuously, 24 hours per day, 7 days per week and providing that power is maintained for this period the parties of the second part are free to pursue any business or activity they wish.
5.     Salary to be fixed at $200 per week, adjustable when increases occur in the Metal Trades Award, or other appropriate award.
6.     All meters to be read quarterly by the second part and the accounts to be left at the consumers place of residence at the time of reading.
7.     House rent to be fixed at $7.00 per week.
8.     Phone rental and all calls appertaining to the maintenance of the power supply to be paid by the first part. All private calls to be paid by the occupier of the residence.
9.     Furniture removal charges to be reimbursed after twelve months satisfactory service.
10.    All supplies to be ordered through the District Clerk.
11.    Employment shall be terminated by not less than three months notice being given by either party, which notice may be given at any time providing that nothing contained in this agreement shall derogate from the first parts right at common law to dismiss a said contractor, without notice, for misconduct or other sufficient cause.
.........................
We, the undersigned hereby certify that having read the terms of the above agreement we are fully conversant with and agree to abide with the conditions as laid down therein.
(signed) Contractor [H.R. SEARLE]            (signed) Chairman
(signed) Contractor [K.W. THORNTON]     (signed) District Clerk”
ETSA constructed its connection to the township system during the final year of the initial three year term of that agreement. The Council thereupon closed down its own generation undertaking. At that point Searle ceased provision of his services under the “contract”, as there was no further mechanical work to be done.
Thornton continued to work for the Council, discharging electrical maintenance, site connection and meter reading duties in relation to the township reticulation system. For the sake of simplicity I will, at times, refer to the position occupied by Thornton as that of the “electrical supervisor”, although it was variously titled over time and attracted differing ranges of duties.
Occasionally Searle would assist him, on a voluntary basis, when urgent work had to be done.
Searle was generally aware of the construction of an outreach SWER reticulation system from Hawker, following the connection of the township electricity undertaking to the ETSA supply. He does not seem to have been directly involved in this development, which was, as I have said, contracted for by Cowell. He merely provided mechanical services for Cowell’s vehicles and equipment, through his garage.
At some point, which, on the evidence, seems to have been late in 1977, the then District Clerk requested Searle to attend a meeting of the Council. He did so. The Council indicated to Searle at that meeting that problems had arisen between it and Thornton; and that it proposed to call tenders for his replacement. Searle was asked to take over the relevant responsibilities on an interim basis, pending completion of that process. He agreed to fill in whilst tenders were called for a replacement.
(Searle explained in evidence that Thornton had sustained a work related injury in the course of his former employment with BHP. This had resulted in memory lapses. Searle testified that, whilst Thornton performed adequately under the leadership of another person, he had difficulty in prioritising and organising work; and was easily distracted from one task by another. This had led to problems for the Council, which terminated his engagement.)
At the end of 1977 the Council published tenders for the position - which was then titled “General Maintenance Operator” - in the following form:-
“DISTRICT COUNCIL OF HAWKER
R.W. TRINDER, Clerk  POSTAL ADDRESS
Phone: Hawker 11.  BOX 17,
  HAWKER, 5434
ELECTRIC SUPPLY UNDERTAKING
Tenders are invited and will be received up till 5pm on Saturday, 17th December, 1977, for the position of General Maintenance Operator of the District Council of Hawker Electric Supply Undertaking. Duties will include:-
1.     Maintenance of all town power lines, street lighting and the planned SWER lines to outlying areas.
2.     Maintenance of ETSA power lines between Neuroodla and Hawker.
3.     All work connected with upgrading, altering and installing power lines, new services, equipment and power supply facilities.
4.     Carrying out duties of Council Inspector and meter readings etc.
Annual Contract Price Desirable.
For further particulars contact the District Council Office, Fifth Street, Hawker.
(signed) District Clerk ”
As the notice implies, the arrangement was intended to be on the basis that the operator was to be an independent contractor on an annual retainer.
The invitation to tender was issued pursuant to a resolution of the Council dated 21 November 1977, which recorded that materials were “to be supplied at cost of Council. Council to supply satisfactory vehicles, tools and incidental equipment.”
During the tender period, individual members of the Council approached Searle and asked him to submit a tender.
He expressed himself as reluctant to do so to the exclusion of Thornton, who was a sole parent, supporting five children. The small, separate, electrical business which Thornton conducted in the town was inadequate, alone, to support him and his children.
Eventually, a bargain was struck, whereby Searle became the principal tenderer. This was on the basis that Thornton was also to be separately engaged and paid by Council to perform linesman’s duties, under the general supervision and direction of Searle. The requirement was for Searle and Thornton to be on call 24 hours per day, seven days per week. By this time a quite extensive district SWER system had actually been developed.
The Council minutes are singularly unenlightening as to these arrangements. Those for a meeting held on 19 December 1977 merely contain a record of the resolution:-
“That the tender from Mr H R Searle be accepted as maintenance operator for the Electric Supply undertaking @ $200 per week as from 30 December 1977.”
Searle’s memory was that some form of agreement was drawn up to evidence the arrangement, but no such signed document was tendered in evidence. He was, however, adamant that there was never any specifically agreed requirement that he and/or Thornton were to conduct regular patrols and inspections of the SWER system.
All that is now extant from the Council records is an unsigned document with ink alterations on it. It reads as follows:-
“DISTRICT COUNCIL OF HAWKER
R.W. TRINDER, Clerk  POSTAL ADDRESS
Phone: Hawker 11.  BOX 17,
HAWKER, 5434
ELECTRIC SUPPLY
CONTRACT FOR SERVICE
The following contract is entered into by the First Part, the District Council of Hawker, Hawker, and the second part Hedley Roger Searle, of Hawker, and the conditions set out hereunder are to apply for a term of two years as from the 30th ~~December, 1977~~, June, 1980, with the right of renewal, if so desired. It is mutually agreed that the following conditions shall apply:-
1.     Maintenance of all electricity lines, both Township and S.W.E.R., new installations, Street Lighting etc. Buildings and Land to be retained in a reasonably orderly manner.
2.     Inspection of new, or alterations or additions to consumers services, as required.
3.     Salary to be fixed at ~~$200~~ $219.85 per week, adjustable as increases occur in the cost of living award.
4.     All meters to be read quarterly and the accounts to be left at the consumers place of residence, at the time of reading.
5.     Phone calls in connection with Electric Supply matters to be reimbursed. Statement of such calls to be submitted for records purposes.
6.     All supplies to be ordered through the District Clerk. Official order forms to be issued accordingly and copies to be retained for records purposes.
7.     The Contractor to be responsible for the maintenance of, and, safe keeping of, all Council owned supplies and equipment, including vehicle.
8.     Additional labour, should the occasion arise, to be supplied by the Contractor, at no extra cost to the Council. Insurance of such labour to be the responsibility of the said Contractor.
9.     The Council owned vehicle to be used whenever practicable. Running costs to be paid by Council.
10.    Employment shall be terminated by not less than three months notice being given by either party, which notice may be given at any time, providing that nothing contained in this agreement shall derogate, from the First Parts right at common law, to dismiss the said Contractor, without notice, for misconduct or other sufficient cause.
We, the undersigned, hereby certify, that having read the terms of the above agreement, are fully conversant with, and agree to abide by the conditions as laid down therein.
Maintenance Contractor.  Chairman.”

It should be noted that the original typed version was on letterhead showing Mr R W Trinder as District Clerk. The witness Johnston said that the alterations are in his handwriting. He was appointed District Clerk some time in 1979. The inference which I draw is that the alterations in the heading and text of the document (shown in bold italics) were made in 1980 when arrangements between the parties were reviewed.
It does not seem to be disputed that the document accurately sets out the responsibilities accepted by Searle in 1977, although there is no reference to the part played by Thornton.
The above arrangement continued in force until about 1983. During that period the Council requested Searle, from time to time, to construct modest extensions to the SWER lines. This was done to meet the needs of persons who applied for connections (or additional connections) to the power reticulation system, at their cost. It was his custom to quote on a labour and plant basis only. The componentry was to be procured by the Council (normally from ETSA) and charged by it to the customer, as part of the “all up” contract price. All of that type of work was treated as being quite separate and apart from the retainer as general maintenance operator.
Searle said that, where SWER extensions were very short, or were only for a modest distances over flat terrain, it was within his competence to both design and construct them. He routinely did so.
However, in all other instances, it was necessary to have the extension designed and specified, as to its componentry, by a properly qualified line surveyor. Eddie Zajer, a senior technical officer employed by ETSA at its Port Augusta office, was such a person. In practice he attended to all survey work of this type for Searle and provided the latter with detailed component lists by reference to the ETSA E-book (exhibit TP3). These lists would, either directly or by such reference, extend to every individual component required to complete the construction.
Such surveys were necessary not only to establish a preferred route for the extension, but also to ensure that poles and pole hardware were appropriate to the stresses created by the conductor spans, often in undulating and difficult terrain.
The requisite survey activity was carried out by Zajer on a personal, private contract basis, for which appropriate fees were paid to him. Whether he did so with the express or tacit approval of ETSA does not clearly emerge from the evidence.
Searle would compile a detailed component list from Zajer’s specification (by resort to the E-book references in it) and then request the District Clerk to raise appropriate orders for materials and send them to ETSA in Adelaide. When ETSA advised that an order had been filled the Council or Searle would arrange for a carrier to pick up the items and (normally) deliver them direct on site.
On occasions incorrect components were supplied and this would cause problems.
As I understand Searle’s evidence, it was to the effect that SWER insulators could either be of the 76 mm or 112 mm neck size - it was, technically, immaterial to construction which was used. Because most insulators in the existing system were of 76 mm neck size, Searle always ordered that size. He did so to maintain uniformity, and always ordered wraplock securing ties “to suit”. Thornton also gave evidence that they normally only carried 76 mm wraplocks with them.
The evidence indicates to me that, over time, Searle developed considerable knowledge and expertise in the proper construction and maintenance of SWER lines.
Following the occurrence of the widespread “Ash Wednesday” bushfires in 1983, Searle became anxious about his potential for legal liability, if fires were caused by defects in the SWER lines. He had no relevant public risk insurance and the retainer paid to him was inadequate to fund the effecting of an appropriate cover. Moreover, it is his memory that Zajer, with whom he usually dealt, told him of how some fires had commenced because of SWER line problems. Zajer said that it was necessary to be seen to carry out some reasonable activity of the nature of line patrolling and inspections (T368).
Such was Searle’s concern that, although his retainer did not cover the cost of so doing, he voluntarily patrolled a large portion of the SWER system in both 1983 and in 1984. He did so on a motorcycle, examining the poles and line assemblies. The Council was aware of this. (See its minute of 19 September 1983, exhibit D17, page 325.) Where considered necessary he carried out his inspections with the aid of binoculars.
After discussion with the then District Clerk (Johnston) Searle resigned as contractor on retainer on 19 September 1983. He was forthwith re‑engaged to perform the same work on the same terms, with Thornton. They both became direct employees of the Council. As a consequence, they were then covered by its public risk policy.
The Council minutes contain the following, somewhat cryptic, entries:-
“.. Mr H Searle and Mr K W Thornton be employed on a casual basis by the Council to carry on the maintenance work for the Council’s E/S.
E/S works program
1.     Line inspections; requested gates in fences
2.     Tails on transformers
3.     Lake Torrens power line Urgent Requirement
4.     Worumba line
5.     Sectionalization of SWER Grid
Resolution: to write to all landowners and request provision for gates and access roads to SWER lines.
...
Moved by Cr H J Spiers Seconded Cr N Solly; that Mr H R Searle and Mr K W Thornton, as casual Electric Supply Officers be paid to a maximum value of hours equivalent to $250 and $150 per week respectively. Mr H R Searle to be the more senior employee.”
Searle’s resignation was evidenced by his letter, exhibit D26, written to the Council. The insurance situation is evidenced by the documentation comprising exhibit TP7.
At the time, the Council arranged for its solicitors to prepare a proposed formal contract with Searle (which forms portion of exhibit TP7). He declined to sign it on the basis that it purported to obligate him to conduct periodic inspections of the SWER system and to effect appropriate insurances, neither of which were allowed for in the retainer paid to him.
The separate SWER line construction contract jobs undertaken by Searle continued, on a labour and plant only basis, up until late 1984, when he sold his garage in Hawker, moved to Wilmington and terminated his engagement with the Council. The Council minutes for a meeting held on 17 September 1984 record an acceptance of his resignation, effective from 8 September 1984.
It may be a nice question as to the status of Searle in relation to the separate construction jobs post 19 September 1983, bearing in mind that the Council seems to have procured all componentry and (presumably) invoiced the relevant land owners for the whole cost. A question arises as to whether the payments to Searle for labour and plant were merely an addendum to his part time employment. However, this was not agitated by counsel and there is a dearth of evidence as to precisely how the contracts were in fact administered.
When Searle resigned, the Council took steps to replace him. On 17 September 1984 Johnston was instructed to advertise the position.
The minutes of a Council meeting held on 19 November 1984 record an acceptance of Thornton’s resignation. They also refer to receipt of a report from a “new electrician Mr Glen E Miller”, although there is no formal minute of his appointment at that time. According to the Council minutes Miller’s resignation was ultimately received on 18 June 1985, at which time it was resolved to call applications for his replacement.
The record of that date is difficult to place in context with the content of the minutes of the following meeting, held on 16 July 1985. These include a resolution that the electrician be dismissed as of the preceding Thursday night “due to his numerous recent breaches of employment conditions.” It was further resolved that Thornton be appointed to the position temporarily until a new electrician was appointed.
Interviews were held by the Council on 9 August 1985, following which Thornton was appointed as Council electrician. He held that position until about April 1988, when he appears to have left Hawker.
The witness Van Keulen thereafter was asked to fill the position temporarily until a replacement could be found - a process which, in fact, actually occupied some eight months.
He was something of a “reluctant dragon”. Van Keulen was an A Class electrician, but had no training or experience as a linesman. His substantive position with the Council was that of manager of the local swimming pool complex. It is fair to say that, in his acting capacity as Council electrician, he basically looked after the town power supply and urgent SWER maintenance tasks within his capacity, such as minor damage caused by lightning strikes. Of necessity, he had to consult with ETSA personnel in Port Augusta to seek advice in relation to repair work with which he was not familiar. On at least three occasions, ETSA crews actually came to Hawker and performed work beyond his capacity. Johnston confirmed that evidence and said that no charges were ever levied by ETSA for such assistance.
In cross examination Van Keulen said that, to discharge his responsibilities, he had to become familiar with the use of wraplocks. He asserted that, at the time, there was a stock of about 800-1000 wraplocks of “all sorts of sizes” in stock in the Council depot - an assertion which is in discord with the evidence of all other relevant witnesses. He said that, in the eight months of his tenure, he would have used “at the very most” about 100 of the wraplocks.
I pause to comment that I did not find Van Keulen an impressive witness. He appeared to have some difficulty in accurate recollection and was obviously most uncomfortable in his role as a witness. As was said by Mr Trim QC, there were also obvious signs of exaggeration in some of the evidence which he gave. I view his evidence generally with considerable reservations.
Van Keulen’s evidence concerning stocks of wraplocks simply cannot be reconciled with that of Searle, Thornton and the witness Henley and I do not accept it. Nor do I accept that Van Keulen used 100 wraplocks. The evidence indicates that he did very little work which required use of such items. Moreover, Henley was quite clear in his evidence that, when he took over from Van Keulen, there were no wraplocks in store.
I do, however, accept his evidence that his maintenance role was limited to rectification of faults occurring, mainly, within the township; and that it was never envisaged that he would undertake preventative patrol inspections of, or significant work on, the SWER system.
Be that as it may, Council minutes indicate that interviews were held by it for the position of electrical supervisor on 9 December 1988.
Ultimately Council resolved, on 13 December 1988, that Henley “be employed as the Council’s Electrical Supervisor at the third year MOA Award Rate plus 15% call out fee and that all works and inspections by Mr D A Henley shall be further inspected by the Electricity Trust of South Australia in each and every case.”
Johnston was unable to recollect why such a direction was given concerning Henley’s work. I infer that it related to the fact that Henley did not hold an A class electrician’s licence. When he came to Hawker Henley possessed a B class electrician’s licence. His main expertise was as a linesman.
I found Henley to be an excellent witness, whose evidence I generally accept without question. He was articulate and dispassionate. Whilst he did not profess to retain a present memory of some matters of detail, he had a reasonably good recollection of most relevant events with which he had been concerned. That memory was, of course, assisted by fairly comprehensive contemporaneous entries in daily diaries which he maintained. These had been preserved and were tendered in evidence (exhibit D43). To some extent his memory as to certain details had deteriorated since giving evidence before the Coroner. Due allowance must be made for that, but his credibility was not, in my opinion, successfully impeached.
Henley came to the employ of the Council on 6 February 1989, as a person with considerable qualifications and practical experience relevant to the position of electrical supervisor.
He was initially trained by ETSA and had, by 1972, achieved the classification of senior linesman, a leading hand position - although he had not had specific experience with work on SWER lines.
In 1972 he accepted employment with the Corporation of the City of Peterborough as linesman/foreman working under the direction of an Engineer. After four years there he went to work as a line foreman at Alice Springs. Having thereafter worked for Cowell for some six months, he accepted a two year contract as distribution supervisor in the Solomon Islands, where he trained indigenous personnel.
On return to Australia he accepted a position at Woomera as electrical supervisor Grade 2 - in charge of the development and maintenance of the Woomera town distribution system. He then accepted the post at Hawker, where he remained until 1996, when he was appointed as distribution supervisor at Coober Pedy.
As I understand the situation Henley remained as the electrical supervisor for the Council until about 1996. The evidence indicates that ETSA ultimately assumed direct responsibility both for electricity supply in the Hawker district and maintenance of the total distribution system as of 31 December 1996.
Henley was called by the Council as a witness and cross examined at length. He was in the witness box for a very lengthy period of time, despite the fact that, on occasion, he was far from well.
Against that general historical resume, which seeks to establish a context into which to place other specific evidence and some key dramatis personae, I now turn to a number of discrete topics.

Electricity Supply Arrangements

The electricity supply arrangements in the Hawker district were, at all material times, essentially the product of the financial and statutory regime within which the Council was, in practical terms, required to operate.
ETSA was first established, as such, by enactment of the Electricity Trust of South Australia Act 1946. It subsumed the undertaking of the former body known as “The Adelaide Electric Supply Company Limited”. Inter alia, it had vested in it power:-
with the approval of the Council of any municipality or district council area, to supply electricity direct to consumers within that municipality or district; and

to supply electricity direct to consumers not within a municipality or district council area.

The relevant statutory provisions in that regard constituted a recognition of the fact that, in various areas, municipal and district councils had established and were conducting their own power generation undertakings - as was the case in the township of Hawker.
Authority was also conferred on ETSA to enter into agreements with other suppliers or generators of electricity to interconnect its mains with those of such suppliers or generators, interchange electricity, or give or receive supplies of electricity in bulk.
That above statute had to be read in conjunction with the separate Electricity Act 1943, as amended, which, inter alia, mandated registration of generators or vendors of electricity with ETSA.
Section 17 of the lastmentioned statute also stipulated as follows:-
“Notice of New Generating Stations and Plant
17. (1)       A person shall not commence to -
(a)     construct any generating station;
(b)     convert any premises into a generating station;
(c)     enlarge any generating station, whether constructed before or after the passing of this Act; or
(d)     install in any such generating station any additional plant or machinery for the generation of electricity,
unless he has first given the Trust notice in writing of his intention to do so.
(2)     This section shall not apply in relation to a generating station in which a person generates or intends to generate electricity solely for his own use and not for sale.”
The strategic, long term implications of those provisions are obvious. They constituted a first step towards enabling ETSA, in the long term, to become a monopoly provider of electricity throughout the State.
Over time two other, quite separate, enactments were of relevance to district councils. These were the Electricity Supplies (Country Areas) Act 1950 (“the Supplies Act”) and the Electricity (Country Areas) Subsidy Act 1962, as amended (“the Subsidy Act”).
The former established a scheme whereby a district council (or combination of district councils) could submit to the Minister a scheme for the purchase, enlargement, extension or improvement of any electricity undertaking carried on or intended to be carried on by it or them.
The Minister was required to refer any such scheme to ETSA for investigation and report. Having considered the ETSA report it was open to the Minister to approve the proposal, either as presented or in an amended form requested by the Minister. The Council was never privy to any reports tendered by ETSA to the Minister, as to its capital works budget or, for that matter, its operating subsidy.
In the event that a scheme was approved, the applicant council was authorised to borrow moneys for the purpose of implementing it and, at the same time, qualified for a State Government grant equal to one half of the approved capital expenditure. The inter-related Local Electricity Undertakings (Securities for Loans) Act 1950 specifically authorised district councils to secure borrowings envisaged by the Supplies Act by means of debentures or various other forms of security.
The Subsidy Act envisaged the appropriation, from Consolidated Revenue, of sums of money provided by parliament to ETSA, as an accretion to its budget, upon the footing that ETSA was, in turn, to pay to country electricity suppliers such amounts as the Treasurer might from time to time direct; and upon such terms and conditions as the Treasurer should determine.
As was explained by various witnesses, the composite statutory scheme rendered it possible for district councils to provide electricity supplies on a workable and financially viable basis.
In practice the Hawker electrical supply undertaking was conducted as a discrete activity within the overall Council functions. It was separately identified for accounting purposes and the electrical supervisor was constrained in his expenditure by funds available within the undertaking sub-budget.
The situation was complex in that, from an early stage, one half of the salary of the District Clerk, a proportion of the salary of another staff member and the remuneration of the electrical supervisor and anyone assisting him was attributed to that sub-budget. This was, of course, a distinct advantage to the Council in terms of the cost of its general administrative overhead.
The budgetary provision for the undertaking was divided into two components, namely the so-called “capital works budget” and “operating budget” respectively.
The capital works budget (at least as initially administered) was, in a sense, inaptly named. It covered all expenditures which related either to proposed new initiatives, or which were necessary for ongoing maintenance of the existing system, other than for labour. This derived its funding from loan moneys raised annually, with the approval of the Minister, in accordance with the Supplies Act and complementary legislation.
By way of contrast, the operating budget originally had its primary focus on general administrative and labour costs of the electricity undertaking (including labour required for maintenance works), the recurrent cost of generation or bulk supply of electricity, the moneys recovered from consumers (including the country surcharge on metropolitan ETSA rates) and the cost of servicing capital budget loan raisings.

One odd feature about the budgets was that there was, at least by the time at which the witness McInerney became District Clerk, a curious overlap between them. I infer that there was not necessarily a consistent approach to their use by successive District Clerks.
The capital works budget contained Item 3, titled “Poles, Line Hardware”, whilst the operating budget included line 2.3, titled “Maintenance and Repairs - materials for lines”. In practice McInerney debited major maintenance items (eg transformer replacements) to the capital works Item 3, whilst he wrote minor line componentry and materials off to line 2.3, immediately on their procurement. Whether this was consistently done by other District Clerks is a moot point.
The annual budgetary processes (at least up until Henley took over as electrical supervisor) normally developed in this fashion:-
in February/March of each year the electrical supervisor would confer with the District Clerk concerning desired works and expenditure strategies for the forthcoming financial year;

by about April each year the Council would firm up on a proposed draft capital works budget;

in about that month this would be placed before and discussed with Zajer;

Zajer would advise them as to its content, either by way of suggested addition or subtraction of items, although he had no authority to approve it;

thereafter the draft capital works budget was the subject of a discussion involving officers of the Council, Zajer and the second in charge and/or the Regional Manager of ETSA at Port Augusta;

(It seems that, in practice, the statutes to which I have referred were mainly applicable to the northern and western areas of the State, by the time relevant to this action. In the main the district councils involved fell within the jurisdiction of the office of ETSA at Port Augusta which, principally, was involved in the administration of the scheme.)

by about May of each year the appropriate senior officer of ETSA would indicate to the Council the quantum and composition of the draft capital works budget, as accepted by it. Johnston testified that, invariably, it would be at a figure very much less than that sought. I prefer his evidence in that regard to the seemingly contrary evidence of Thornton, who, for reasons later expressed, I consider a somewhat unsatisfactory witness;

when negotiations were concluded with ETSA the approved draft capital works budget would be transmitted by the Council to the Minister, who would then formally request a report and recommendation from ETSA in relation to it. ETSA would respond in a fashion typified by exhibit D12, but the Council would not be privy to any report rendered by ETSA to the Minister. The report would itemise and comment on the proposed borrowings for the various works, revising the estimate cost for the different work where considered appropriate. The conclusion of the ETSA report would provide the Minister with a recommendation which he would, normally, ultimately adopt; and

Ministerial approval to borrow the amount of the approved budget would then issue, thus enabling the Council to raise a bank debenture loan by about the commencement of the then new financial year.

Zajer played no role in the preparation and approval of the operating budget. This was dealt with, later in the year, by the District Clerk and the second in charge at the ETSA office in Port Augusta. Invariably this was, in its finally agreed form, inter alia, a reflection of the impact of the capital works budget borrowings.
This process involved somewhat different personalities by the time McInerney arrived as District Clerk of the Council. The evidence also suggests that, by 1991/92, the operating budget was actually negotiated in conjunction with the capital works budget. This may well have been the first year of such an arrangement. As exhibit D2 indicates, the operating budget for the preceding year was not submitted until June 1990, whereas the capital works budget had already been finalised and sent through the system much earlier than that.
Shortly after McInerney’s arrival, ETSA notified him of a new, required budgetary process. By letter dated 22 March 1991, Green, a professional officer employed by ETSA, advised McInerney in these terms:-
“Dear Paul
HAWKER ELECTRICITY UNDERTAKING
1991/92 OPERATING AND CAPITAL WORKS BUDGET
In line with budget procedures now in place, Operating and Capital Budgets should be prepared and submitted to ETSA by the end of April each year.
In addition, you will also be required to submit a 5 year Capital Works Programme covering such items as reinforcement and upgrading of the Hawker distribution system and replacement of vehicles.
Commercial Officer, Stephen Carter and Technical Officer, Edward Zajer will visit Hawker on 11 April 1991 to discuss the 1991/92 Capital and Operating Budgets and assist you with the preparation of your 5 year work plan.
Budget and subsidy procedures are currently under review and I enclose a draft copy of proposed procedures to be adopted this year. Any comments or suggestions you may have would be appreciated.
Yours faithfully,
(signed)
B Green
ACTING REGION MANAGER UPPER NORTH”
[No copy of the enclosure can now be located by the parties.]
In his report to the Council of 18 April 1991, McInerney advised it that budgets were likely to be “under fairly stringent ... justification”. He had been given to understand by ETSA officers that money would be very tight.
The foregoing processes clearly demonstrate that the capacity of the Council to effect either new capital works (apart from any new construction paid for under contract by potential consumers) or maintenance initiatives and functions was firmly controlled by ETSA. Moreover, the evidence indicates that its officers - particularly Zajer - exercised supervision over Council officers to ensure that funds were in fact applied in accordance with the approved capital works budget. Indeed, the evidence indicates that, although a capital budget item may have been approved, ETSA officers required multiple quotes to be submitted to them in respect of all significant expenditures. They insisted on the right to approve any specific, substantial purchase, after considering quotations.
It is necessary to say something about the evidence of the ETSA witness Spall, which threw considerable light on the practical working relations between the Council and ETSA in that fiscal context.
In about 1980 he secured the appointment of Tariff Officer within ETSA, which he thereafter held for a considerable number of years. Up until about 1990 one of his duties was to administer the relevant subsidy scheme, in so far as it impacted on the Council’s operating budget from year to year. His experience and qualifications were in the area of finance. He had no technical background.
He confirmed that the subsidy arrangements required him, each year, to review the operating budget of the Council, which was, in any event, automatically affected by approved capital budget items. These were separately processed by other officers.
Spall’s normal modus operandi would be to contrast a proposed new budget with that for the previous year and require proper justification for any variations. He said that the draft budget would, normally, already have been discussed by officers of the Council with regional officers of ETSA; and that he would make the ultimate decision as to what was to be allowed. If technical issues bore on proposed new expenditures or levels of expenditure, he would seek and take advice from regional ETSA technical officers, as necessary, in arriving at a decision.
It is quite clear from Spall’s evidence (and, for that matter, documentary material such as relevant correspondence within exhibit D119) that, by reason of this budgetary evolution process, ETSA very directly scrutinised and, in reality, controlled important aspects of the nature and scope of the operations of the Council electricity undertaking. For example, if it was desired to commit additional recurrent expenditure to an aspect such as line patrolling or maintenance activities, this simply could not be done, in practical terms, unless the ETSA technical staff recommended it and the expenditure was then approved by Spall for inclusion in the subsidy. Correspondence in exhibit D119 readily reveals that proposals of the Council were by no means automatically approved. What were reasonable and justified requirements depended very much on ETSA’s assessment in that regard.
By a somewhat different route much the same conceptual process took place in relation to the capital works budget. Proposed capital expenditures first had to run the gauntlet of scrutiny by the relevant regional technical officers of ETSA and also its regional manager. The requisite capital works budget would be formulated by including any items approved by them. This would then be transmitted to Adelaide for final review and approval in the manner described earlier in these reasons.
Although the Minister had, formally, to approve any initiatives which called for the raising of capital borrowings, the practicality of the matter was, clearly, that his decision would almost certainly reflect advice given by ETSA, the more so if that advice was against approving the expenditure.
So it was that ETSA exercised a firm and tight practical control over the Council operations. I reject any proposition that the Council was, in substance, a free agent and not beholden, in significant degree, to ETSA as to what it could and could not do in relation to the conduct of its electricity undertaking.
It is obvious that, in the case of small district councils, such as Hawker, which serviced a very sparsely settled area, such bodies operated on a financial “shoe string”. The very viability of their electric supply undertaking appears to have been dependent upon the statutory subsidy meted out by ETSA. When Henley arrived, the Hawker subsidy was of the order of $350000 pa. It necessarily governed the manner in which the undertaking could be conducted and the degree of maintenance activity which was feasible. In the case of Hawker there was simply no means of financing regular line patrols, absent additional subsidy funding. I do not accept, on the whole of the evidence, that these and any resultant maintenance tasks could have been done within the normal budget, without sacrificing other activities. In so concluding I do not ignore the evidence of Barnes (T1308).
Moreover, it was not until shortly prior to the occurrence of the subject fire, that funding approval was given for the acquisition by the Council of an elevated platform vehicle (“EPV”), so that effective pole top inspection and maintenance activities could be carried out, as appropriate to the circumstances.
I reiterate that I view with great scepticism the evidence of Thornton to the effect that the needs of the Council were generally met - if not in one financial year, then in the next. That suggestion does not sit well with the evidence of Johnston and Searle, which I prefer in that regard.
Henley’s evidence, which I unhesitatingly accept, was to the effect that, whenever any unexpected problem arose which involved potential expenditure of money, he or the District Clerk had to go to the appropriate officer of ETSA to seek approval to make that expenditure. He was constrained, in such circumstances, to proceed in the manner directed and authorised by such officer in each instance.
This was so, notwithstanding that ETSA generally expected the Council to maintain its undertaking according to ETSA standards, as articulated in any E‑books and Distribution Instructions supplied by it to the Council.
There is little doubt that ETSA positively controlled any expenditure of substance which was to occur with respect to the electricity supply undertaking. The constraints felt by the Council were a result of the de facto control ETSA had over the entire fiscal process.
As appears from exhibit TP27, the Department of Mines and Energy took over the administration of the statutory scheme from ETSA on 7 August 1995. However, nothing turns on that change for present purposes.

Council relationships with ETSA

I have already discussed the important interaction between the Council and ETSA in relation to the formulation and approval of the capital works budget and the operating budget; and the fundamental impact which those budgets necessarily had on the manner in which the former was able - in practical terms - to conduct its electricity undertaking. I will not retrace that ground.
As previously appears, ETSA officers kept a close check on actual expenditures and operations, to ensure that they were directed to the attainment of approved ends. Questions were readily raised if it was perceived that work for which funding had been approved had not been carried out.
Reference has also been made to the fact that, quite apart from his official duties with ETSA, Zajer had significant interaction with Searle in his private capacity, whereby he acted as a technical consultant - for which he was, personally, paid consultancy fees. That conduct cannot be taken into account in determining the nature and extent of ongoing working relationships which existed between the two entities. On the other hand, it forms a backdrop which serves to cast some light on the close, ongoing nature of relationships which did plainly exist over time between officers of the Council and relevant ETSA officers.
One of the major difficulties which exists in identifying the nature and extent of those relationships is that evidence given by varying witnesses on this score not only extends back to a consideration of what took place many years in the past, but, also, it was given as the product of personal perceptions of the witnesses in question, stemming from the nature of their involvement in what occurred. In some instances, it may well have been tinged by an unconscious element of ex post facto rationalisation. Moreover, changes of personnel over time (both within the Council and within ETSA) clearly had a significant impact on the working relationships and modus operandi which existed at various specific points in time.
The evidence led at trial portrays the following situation:-
there is no doubt that, because of the limited financial, physical and personnel resources made available to it by virtue of the budgetary situation, the Council and those engaged by it were very dependent upon various ETSA officers, on a continuing basis, for technical and budgetary advice and/or direction. Very frequent dialogue occurred between the electrical supervisor and/or the district clerk and such officers - particularly with Zajer in the early stages. Other officers (such as Green and Rappa) were also involved by the time of Henley’s arrival on the scene.

Despite strenuous efforts on the part of ETSA to paint a scenario in which, in large measure, it stood at arm’s length from the Council in relation to the conduct by it of its electricity undertaking, the totality of the evidence overwhelmingly negates such a proposition.
Almost from the outset of the development of the SWER system there was tacit, if not express, recognition that the Council had neither the staff and facilities nor the technical expertise to develop and maintain the distribution system without very considerable ongoing assistance, input and guidance from ETSA, quite apart from the very real control stemming from the fiscal arrangements.
So it was that, in a minute dated 26 November 1975 (part exhibit D145) the General Manager of ETSA commented to the Minister of Mines and Energy (apropos the then initial stages of development of the SWER system) on the limited staff and facilities of the Council and made the important practical point that, any additional costs incurred by it would have to be picked up by means of increased subsidy payments.
It follows that there was every good reason why close working arrangements should exist between the two entities, as this was the most cost effective overall approach. The evidence verifies that this was always the practical situation, the more so as the Council had very limited “in house” technical expertise and plant and equipment and only a “shoe string” staff.
Whether Johnston was guilty of any significant degree of undue exaggeration when he said that the Council had to go to ETSA “cap in hand” for almost anything (T139-40) may be a moot point. However, that type of perception was little divorced from the reality of the situation. Certainly Zajer in particular and other officers of ETSA over time undoubtedly played a major, dominant role in what was done in relation to the development and maintenance of the Hawker distribution system. In such a context those technical instructions which were made available by ETSA to the Council from time to time were taken by the latter to be virtually prescriptive.
Moreover, I think that Henley very accurately summarised one aspect of the situation when he said:-
“It is very difficult when you are the only electrical supervisor in the district and you don’t get any help, or there is no technical knowledge above that [i.e. within the Council], that you have to go to ETSA for it and that was the position I was in. They were the experts and I had to go to them for advice.”.
There can be no doubt that ETSA was, at all times, well aware of that situation and accepted that the Council relied heavily upon it for technical guidance and direction. (See also the evidence of Barnes on this score. (T1294-1298.)

the Council had no say in what electricity tariff was to be charged to consumers. ETSA simply advised it each year that it was to charge out electricity consumed at a specified rate approved by the Treasurer. This was, invariably, the normal ETSA metropolitan tariff from time to time, plus a surcharge of 10%. The quantum of that tariff, in turn, reflected upon the quantum of subsidy which was required by the Council to remain viable;

by way of contrast, in cases in which the Council was asked to carry out SWER extension works at the cost of the consumer (as a private contract), the electrical supervisor simply quoted an all up figure (including “add on” costs and some profit margin) without prior reference to or consultation with ETSA;

it is clear that, over a long period of time, the Council officers unhesitatingly called on ETSA (often by contact with Zajer, Hicks, Carter, Chapman, Greeneklee or Rappa) for physical assistance when they were confronted with situations beyond their capacity to handle, at least in a timely manner. That assistance was normally and readily provided by ETSA at no charge to the Council. Johnston, Searle and Henley all described ETSA line crews coming to Hawker for various purposes, although the evidentiary waters are somewhat muddy as to how often this took place. Typical situations of this type were when lightning strikes caused substantial damage to SWER lines. Occasionally this type of assistance was also rendered in relation to a major problem which was beyond the resources and/or competence of the Council personnel to attend to. For example, the installation of certain types of transformer.

Similar evidence was given by the witness Van Keulen, who was in much greater need of line assistance than the other supervisors. He spoke of an occasion when 3 line crews were sent to Hawker to assist.
Equally the Council officers worked in aid of ETSA on a basis of mutual co-operation. Henley instanced assisting to patrol an ETSA line when power outage occurred, placing the Neuroodla recloser to one shot to lock out on a day of extreme fire danger, assisting with restringing lines to a transformer at Port Augusta, assisting on one occasion with the EPV and a Crane at Quorn and the like. There was a variety of such activities. ETSA officers frequently came to Hawker to carry out inspection functions when the Council officers were not qualified in that regard. No charges were raised for this type of work.

It is true that exhibit TP26 evidences one plant hire charge made by the Council against ETSA, but this seems to have been a one off major job done for ETSA on an agreed charge up basis, which by no means detracts from the generality of the mutual co-operation arrangements which clearly existed at all times.
It is apparent on Henley’s evidence that, from time to time, ETSA permitted the Council to borrow items of its equipment for specific purposes, if not otherwise in use, for which no charge appears to have been made. On occasions ETSA assisted with specialised plant - which the Council did not have. At times, ETSA repaired some items of equipment for the Council without charge (e.g. T780, T962). On the other hand, most plant and equipment items sent to ETSA for maintenance or repair were charged for, the cost being allowed for in the appropriate budget. Inter alia, this included the cost of routine, four yearly recloser overhauls;

evidence was given by Searle of his involvement in annual ETSA courses or seminars dealing with fault finding and the involvement of himself and Thornton in other ETSA sponsored activities for which no fee was paid - save a fee for some licence issued to Thornton on one occasion. Henley also spoke of his involvement in ETSA conferences, seminars and instructional activities, for which no fee was charged. On the other hand, Matthews’ formal linesman’s training courses at Marleston were paid for by the Council, as was a special switching course conducted by ETSA for Henley and Matthews at Hawker;

ETSA appears, periodically, to have sent the Council amendment sheets to the E‑book and other allied publications supplied by ETSA to it, although, in my opinion, the Council clearly did not receive all amendments. Furthermore, the evidence discloses that, at best, there was, often, a 6‑12 month delay between adoption of a new procedure and publication of the relevant E-book drawing (T2524). However, there was no evidence led by ETSA as to its publication and amendment distribution system and whether the Council was on any automatic, comprehensive distribution list. Whilst it bore no positive onus of proving such a system I have, as a matter of fact, been left in the dark as to what was said by ETSA to have occurred;

The evidence discloses a clear understanding by all concerned that the Council was expected to construct and maintain its distribution system to ETSA “standards”, as indicated in those publications. Searle, Thornton and Henley related how they used to replace sheets in the relevant publications with replacement sheets as and when these came to hand - the superseded sheets simply being placed on the shelves. There is, however, a real question as to whether the Council was supplied with all amendments to the E-book, at least in a timely manner. Certainly, prior to the subject fire, the Council was not privy to ETSA concerns related to problems encountered with the use of wraplocks and the ultimate ETSA policy decision to replace them with clamps.

In the course of his evidence Barnes testified that, on 23 July 1991, just after he took office as District Clerk, he received a letter from ETSA expressed in these terms:-

“ETSA DISTRIBUTION MANUALS
You are currently the holder of several ETSA distribution manuals (E drawing folders) and up until now all holders have received updates to these manuals free of charge.
Although it has now become necessary to charge for this service in some cases, The District Council of Hawker will continue to have access to the manuals and updates free of charge.
However, we are seeking your assistance in the following areas:-
.        Adding the enclosed copyright and disclaimer sheet into the front of your overhead distribution manual.
.        Returning your green ABC/IUC manual (Book 1 in A4 size) to the address below so that a replacement manual, “Overhead Insulated Distribution Systems” can be despatched to you. This manual will include the Aerial Bundled Cable (ABC) drawings and if requested will also include the new Insulated Unscreened Conductor (IUC) drawings.
.        The recently introduced IUC drawings have an associated licence agreement which must be finalised before our manual can be sent. If you do require these drawings please read and sign the licence agreement, complete the schedule and return it with the existing green ABC/IUC manual to:
Distribution Services Manager
                  The Electricity Trust of South Australia
                  26-56 Burbridge Road
MILE END SA 5031

Your reply prior to September 1 1991, would be greatly appreciated.
Yours faithfully,
(signed)
R F ELFORD
MANAGER DISTRIBUTION SERVICES”

The form of agreement was duly signed on behalf of the Council and returned to ETSA;
However, I find that, for some reason, ETSA did not supply the Council with all amending material which it produced for the E-book and/or Distribution Instructions in a timely manner or, in some cases, at all.

nearly all componentry required by the Council, for either construction or maintenance purposes, was purchased from ETSA, by reference to E-book and ETSA stock book designations, either because ETSA was the monopoly supplier, or because of considerations of convenience and ensuring that the correct, desired item was, in fact, procured. However, it was not, strictly, bound to do so. Occasionally, items were purchased elsewhere, either because ETSA was out of stock or did not supply the item in question (e.g. certain types of transformer);
senior ETSA officers made it clear to Johnston (particularly in the context of meetings of the Country Area Electric Supply Group (“CAESG”)) that the long term plan was for ETSA, progressively, to take over all country area electricity supply undertakings; and

(10)detailed consultation occurred between Searle and Zajer as to what protective devices ought to be installed to protect the system in extremes of weather and how reclosers ought to be set to “one shot to lock out” on serious fire danger days. As will be seen, Zajer assisted Henley with the development of the feeder plans and the later fusing system.

Perhaps the most illuminating evidence of the close, ongoing relationships which existed was that of Henley, supported, as it was, by the content of his daily diaries and, to some extent, his monthly reports to the Council. Whilst, by reference to his analysis of exhibit D72 and the Henley diaries, Mr Trim QC sought to suggest that the telephone calls between Henley and ETSA officers did not disclose a vast quantum of technical consultation, the fact remains that interaction between him and ETSA was constant and ongoing, albeit for a variety of reasons.
The evidence of Chase was also of limited value for present purposes. Her dealings with ETSA, whilst also attracting statutory subsidy, arose in a rather different and developing context. As to this I accept the points made by Mr Greenwell in his address, as recorded at pages 3458-3459 of the transcript. There is no need to re-iterate them. It seemed to me that much of what she said was essentially irrelevant for critical purposes and may, or may not, have reflected relationships and modus operandi as between the Council and ETSA. Those questions essentially fell to be decided by reference to credible evidence of the witnesses who were immediately and directly involved.
That is not to say that she did not give some useful evidence related to the historical development of the Council’s SWER system. This was essentially confirmatory of the situation as I have earlier recited it.
It is, of course, to be remembered that she was an administrator and executive of Cowell, rather than a person of technical background. Moreover, over time, her company had a good deal of practical, technical, “in house” expertise. That Company specialised in SWER line contract construction and managing the operations and maintenance of electricity generation and distribution systems.
However, one interesting aspect of her evidence, as I understood it, was that, until at least about 1990, she was ignorant of any ETSA policies related to preventative line patrolling and was also unaware of ETSA ever deciding to abandon wraplocks in favour of seizing clamps. This speaks volumes as to the efficacy of timely ETSA distribution of E-book drawings and other instructions.
On the other hand, when these were received by Cowell they were regarded as technically prescriptive, unless some particular contract specifically stipulated for another mode of construction or operation.
It should be recorded that considerable evidence was directed to the topic of relationships which existed between the Council officers and certain ETSA officers and dealings between the two bodies in the period after the subject fire and extending up to the end of 1996. Some of this focused on an almost Gilbertian situation which developed after the subject fire when, except for limited (budgetary) purposes, ETSA officers virtually refused to give any written response to the Council correspondence - particularly concerning policy issues and technical advice. Nevertheless they did respond verbally - on the footing that they asserted that their solicitors had told them not to commit themselves in writing!
Prima facie this material did not seem to be relevant to issues arising on the pleadings. However, both parties sought comfort in plumbing a wide variety of post fire occurrences and relationships to the depths, on the basis that these, it was said, illustrated a continuing course of similar dealing over time.
I have approached such material with a great deal of caution, notwithstanding the considerable fervour with which both parties (and particularly ETSA) sought to embrace it. As I have already pointed out, personalities changed over time. This undoubtedly had a distinct bearing on practical working relationships. One example of this was the difference which arose between the evidence of Johnston and that of Barnes concerning how SWER maintenance costs were borne as between the capital works budget and the operating budget. I have already adverted to Johnston’s evidence in that regard. I infer that the componentry costs must have been debited by him to a line such as “Unspecified new extensions” and/or Item 3 in the capital works budget (to which I have earlier referred), which seem to have been provisions for miscellaneous componentry expenditure. However, by the time of Barnes’ arrival, all costs of maintenance - componentry, plant costs and labour charges - were, it was said, required to be charged to the operating budget. The latter approach was, of course, a more normal mode of accounting.
More importantly, it is clear that events need to be examined in the context of contemporary circumstances. Undoubtedly the occurrence of the subject fire had a substantial bearing on subsequent developments and relationships; and also upon what decisions were made and approvals given by ETSA. It established a working environment different from that which had preceded it and impacted on the attitudes of ETSA officers because of the unusual expenditures which had to be incurred in patrolling the SWER lines and replacing the wraplocks with seizing clamps.
In this regard a good deal of cross examination of Barnes seemed to be directed towards whether or not Green’s reaction to budgetary issues was appropriate or inappropriate, having regard to the situation with which he was faced at the time. It seems to me that this, really, was a consideration which was largely irrelevant. The question was not whether his attitude and decisions were right or wrong. The truly important aspect was the actual or potential control which Green exercised, or was able, de facto, to exercise, over the Council’s electricity undertaking, prior to the occurrence of the subject fire.
Furthermore, as time went by after that fire, the “political” scene altered dramatically. This obviously had a profound impact on the attitudes of relevant dramatis personae. At trial a good deal of time was occupied, in cross examination, in probing resolutions passed by the Council on 16 August 1994 to seek additional contract work - both to increase the size of its own system and also to generate profits, thereby reducing the quantum requirement for Government subsidy. As Barnes conceded, this occurred in the context of a broader struggle by the Council to preserve its wider, independent existence and avoid being merged into a larger local government entity.
Such developments created a scenario quite different from that which existed pre-fire. Moreover, another complicating factor was the pending and actual corporatisation of ETSA; and the political overtones associated with that developing situation.
It is patent, then, that events and relationships which existed or developed post fire are, at best, of peripheral assistance in considering relationships which existed and developed in the pre-fire period.
For the sake of completeness, I did not find the ETSA witness Faunt at all convincing. He was one of the officers who administered the annual subsidy and budgetary processes in the post fire period. At the outset he sought to convey the impression that all reasonable budgetary requirements of the Council were normally met. However, the longer he was in the witness box the more it became apparent that, during the period referred to by him, the financial reigns were held by ETSA no less tightly than was the situation prior to 1990, when Spall was involved. It was ETSA which decided what were and were not appropriate technical solutions to perceived problems and, in practical terms, what would and would not be funded. As he, himself said, his role was “to review the operations of electricity undertakings to ensure that the subsidy was spent in an appropriate manner”. In that regard he said that ETSA’s role was “to review ... [the operational budget for Hawker] ... and approve the budget expenditure in advance.” (T2818-9)
True it was that, once a budget had been approved and the level of subsidy determined, the Council could, generally speaking, commit the approved funds - subject to a quite detailed ETSA scrutiny of work done and money expended particularly on major items. But the decision as to what budget items should be allowed or unexpected over-expenditures should be sanctioned was, for all practical purposes, very much in the decision of ETSA and the product of advice tendered by it by the Minister.
Nevertheless, it must be emphasised that Faunt’s evidence is of little value for present purposes. His testimony relates to periods well after the subject fire and when major changes in political and structural arrangements were occurring. It casts little light on the periods of time relevant to the issues in this case.
In the course of his submissions Mr Trim QC repeatedly declaimed that, at all material times, the Council enjoyed what he described as complete independence and autonomy. It was not bound to adhere to ETSA’s construction or maintenance standards and was not subject to direction by it. Full responsibility for the safety and maintenance of the distribution system rested with the electrical supervisor.
By way of example, Mr Trim QC pointed to the fact that ETSA was not advised that the Eagle Hill extension was to be built or had been built, prior to feeder plans being recorded on its computer system. He also stressed that ETSA played no part in relevant staff appointments with the Council electricity undertaking.
There is no doubt that, in strict legal conceptual terms, these assertions may well be correct. However, they utterly ignore the practical reality and “flavour” of the scenario as it evolved historically. The so-called independence and autonomy of the Hawker electricity undertaking needs to be viewed in the perspective of the subsidy arrangements administered by ETSA over a long period of time and the actual impact which those arrangements and the mode by which they were actually administered had on the Council. It also had to be considered in light of the ongoing reliance which the Council, to the obvious knowledge of the relevant ETSA officers, had on ETSA for some physical assistance and a great deal of ongoing technical advice and guidance - both by virtue of use of its manuals and publications and other oral and written communications passing between them. Moreover, it is clear that ETSA standards lay at the very basis of much of the fiscal decision making.
The whole “flavour” which arises from the evidence is that of a continuing dialogue between officers of the Council and ETSA as to what was sought/required for the Hawker system and what would, in fact, be permitted from budget to budget as being considered appropriate and necessary for the proper development and maintenance of that system. It was very much a two way dialogue in which, at the end of the day, in practical terms, ETSA told the Council what, in broad (and sometimes quite specific) terms it could and could not do.
Whilst it is true that ETSA had no power of direct legal control over the Council electricity undertaking, there can be no question that it had a high level of practical control. There are various examples of this revealed by the evidence, but one important illustration was the control over what plant could and could not be acquired. A mere cursory perusal of exhibits such as the ETSA letter exhibit D82 and a consideration of the tone in which it is expressed illustrates the dominant approval role assumed by ETSA and the fact that it effectively “called the shots” in many important respects.
This is not to deny that, in various respects, the Council was able to exercise practical autonomy in relation to aspects such as its own staff engagement, selecting source of purchase of materials, entering into private contracts for line construction and the detailed day to day conduct of its electricity undertaking. Furthermore, it is correct that the Council formulated its own draft budget and, after the subject fire, took the initiative with regard to how and when maintenance works ought to be executed. However, this does not gainsay the validity of the point made above, or the effective constraints within which it had to operate. Moreover, budget proposals were an evolving process arrived at in discussion with persons such as Zajer. Post fire activities were, in legal terms, necessarily dictated by the Council insurer.
In summary on this aspect I conclude that the submissions of Mr Trim QC present a quite unreal picture of the practical relationships which developed from the outset in 1977 and continued up to the occurrence of the subject fire.

Securing Conductors in Hawker System

This section is limited, in its focus, to the construction and maintenance of SWER lines in the Council district and, in particular, line poles fitted with vertical insulators.
For a number of years prior to the subject fire, conductors of the Council SWER lines were normally secured to insulators either by use of a “wraplock” lashing, or, alternatively, a special type of hand applied, wire tie. Examples of the latter are depicted in photographs 5 and 6 of exhibit TP14. As I understand the evidence these were used in particular situations in which there was an angle in the conductor route, which rendered it impractical to use wraplock ties. Such a process is prescribed in ETSA Distribution Instruction (“E-book”) drawing E1403/E of exhibit TP3.
Searle and those who preceded and followed him as the electrical supervisor generally took the E‑book instructions, currently supplied to and held by the Council, as being prescriptive for their work.
Accordingly, at all material times, they followed the procedure prescribed by drawing E 1401/E in volume 3 of exhibit TP3 for fixation of straight runs of 19 kV SWER line conductors to insulators. That drawing called for use of a helical line conductor tie (commonly referred to as a “wraplock”) to secure the conductor, except:-

I consider it fair to say that such a submission took both Mr Greenwell and I by surprise. Rightly or wrongly, I had at all times been of impression (on the basis on which pre-trial discussions had proceeded) that this matter was not in issue.
It was common ground, on the pleadings, that the subject fire was the consequence of the energised conductor of the Eagle Hill SWER falling to the ground on 25 November 1991 and igniting combustible material in the vicinity of where it fell. It was also admitted that the plaintiffs suffered loss and damage by virtue of the resultant fire.
In those circumstances the real issue which arose between the plaintiffs and the Council was whether the conductor came down as a consequence of negligence on the part of the Council.
The parties have never been in dispute as to the fact that there was an obvious mismatch between the wraplock and the insulator on pole 4 of the Eagle Hill SWER. The conductor had been secured to a 76 mm neck by a 112 mm wraplock. I have found that this was as the consequence of ETSA supplying Searle with incorrect wraplocks for the job. It is clear that the conductor came adrift as a result of high wind forces operating on a mismatched wraplock, the neoprene of which had also seriously degraded.
No doubt there was substantial initial negligence on the part of Searle, as the person who constructed the line. However, I have no hesitation in concluding, on the facts as found, that another causative factor was the subsequent negligence of the Council in failing to patrol and/or inspect the line adequately, so as to ensure that, at all material times, the conductor remained secure on the insulator. Another, prima facie, causative factor was the negligence of the Council in not ensuring that the relevant reclosers were both operative and set to one shot to lock out, given the day in question.
I unhesitatingly conclude that, had the action gone to trial as between the plaintiffs and the Council, the latter would, in those circumstances, clearly have been held liable in negligence to the former.
There is also a separate, additional consideration.
Mr Trim QC contended that the instant case could not be said to be a non delegable duty situation. The Council could not be held liable for any negligence on the part of Searle, its independent contractor.
He went so far as to argue that, even if it could fairly be said to be a non delegable duty case, the evidence was that Richards actually erected the conductor. He was a person who was totally unqualified to do so and ETSA could not have foreseen that this would occur.
The short riposte to this lastmentioned suggestion is that I have found that the conductor was strung by Thornton and not Richards.
There can, on any view, be no question that, leaving to one side any question of non delegable duty, the defendant would, inevitably, have been found liable to the plaintiffs on each of the two bases referred to above. First, there was a strong case founded on failure to inspect and maintain adequately. Second, there was an equally strong prima facie case based on a failure to place the reclosers to one shot to lock out, or otherwise take effective line protection steps.
Mr Greenwell asserted that, quite apart from those considerations, the Council had a non delegable duty to ensure that the Eagle Hill SWER was constructed properly; and that such duty was not discharged simply by employing an experienced independent contractor to do the work.
He based that argument on the ground that the reticulation of electricity was an inherently dangerous activity which, necessarily, attracted the line of reasoning stemming from Burnie Port Authority v General Jones Pty Ltd (1992-1993) 179 CLR 520 (“Burnie”). Whilst this was not a typical example of a former Rylands v Fletcher (1868) LR 3 HL 330 situation it was, nevertheless, a situation in which the Council was introducing onto the land of the plaintiffs a facility under its control which was inherently dangerous and likely to cause serious damage if not properly installed and maintained. The plaintiffs, by reason of the Council’s actions, were placed in a position of “special dependence or vulnerability”. The factual circumstances were, therefore, such as to attract to the Council a non delegable duty to see that reasonable care was taken - a duty which could not be satisfied simply by employing a qualified and ostensibly competent independent contractor (see Burnie at pp 550 - 551, Kondis v State Transport Authority (1984) 154 CLR 672 at 687).
The response of Mr Trim QC to that proposition was that, even if this was properly characterised as an inherently dangerous activity, it did not follow that the Council could not escape liability by employing a suitable independent contractor. As to this he drew comfort from the reasoning of the majority in Northern Sandblasting Pty Ltd v Harris (1996-1997) 188 CLR 313 (“Northern Sandblasting”).
That was a case in which an electrician, engaged by the lessor of tenanted premises, repaired a faulty electric stove. This was done negligently, as a consequence of which a child was electrocuted.
In the circumstances it was held that the landlord had discharged its duty of care to the occupants of the premises by engaging a qualified contractor whose competence it had no reason to doubt. The majority held that the particular circumstances did not give rise to a non delegable duty situation. Thus the normal common rule was applicable - it was open to the landlord to discharge its duty of care by employing a competent tradesman to do a specialist task. (The minority took a different view as to the nature of the duty, holding that the special dependence or vulnerability of the child gave rise to a non delegable duty of care.)
It follows that Northern Sandblasting does not negate Mr Greenwell’s argument. In my view that argument is plainly correct. As Gaudron J pointed out in Northern Sandblasting at p362, given the existence of the requisite control of the relevant facility, whether or not a non delegable duty arises depends on the nature of the work to be done. Here the erection of a high voltage transmission line with its obvious potentially serious attendant dangers, necessarily constituted a patent danger. It necessarily gave rise to a special relationship of proximity, characterised by the element of control on the part of the Council, and special vulnerability on the part of the plaintiffs.
This leads to the conclusion that, on any view, the Council would have been held liable in negligence to the plaintiffs.
The only potential issues of contributory negligence which the Council was able to identify apropos the plaintiffs were somewhat faintly asserted failures to take adequate fire protection measures in relation to their properties. On the information available to me the likelihood of success with regard to those assertions was fairly remote.
In my opinion the basis on which the primary claim was settled was not only reasonable, I am also prepared to infer that it was also highly favourable to the Council.
Subject to broader issues of causation, to which I shall come in due course, I am abundantly satisfied that, provided that the Council is able to prove that ETSA was, relevantly, another tortfeasor who is, or would at any time have been, liable in respect of the same damage, then the Council has properly invoked s 25 of the Wrongs Act.

The asserted negligence of ETSA

I do not find it necessary to plumb to the depths all of the pleaded particulars of negligence asserted against ETSA.
As was recognised by the parties, these can, conveniently, be grouped into a series of broad contentions.
The first relates to the provision by ETSA to Searle, on the requisition of the Council, of what proved to be mismatched insulators and wraplocks. I have found that, despite the fact that an order was placed for 76 mm neck insulators and matching size wraplocks, ETSA supplied 112 mm wraplocks, which were then used to tie the conductor of the Eagle Hill SWER. Those wraplocks provided a loose fit, which permitted the conductor to become dislodged. The inherently loose fit was exacerbated by degradation of the neoprene covering of the relevant wraplock. This was the primary cause of the conductor falling to the ground, with an inherent risk of the generation of a fire - a risk which materialised in fact.
I have also found that ETSA must have been aware of problems associated with the use of wraplocks, including the potential for mismatching, the problem of corrosion and the likelihood of neoprene degradation. Moreover, it failed to communicate those possibilities and the fact that it had a policy of using seizing clamps, as a preferable option to minimise the possibility of fire causation, to the Council.
I have further concluded that ETSA failed to send its maintenance instructions related to line patrolling and inspection to the Council until after the subject fire. It also failed to advise the Council officers as to the need for and requisite periodicity and details of patrols and methodical inspections necessary to ensure adequate line maintenance. As a consequence it did not give the requisite operating budget approvals to enable such activities to be mounted in a regular and adequate, ongoing fashion.
The budgetary issue did not arise, due to the ignorance of the Council as to what was reasonably required to discharge its duty. In this regard the statements made by Zajer concerning a need to be seen carrying out some line patrolling activities were little short of mischievous. He failed to elaborate on what was required and direct attention to relevant publications. Rather it was left open to the imagination of officers of the Council, known by him to be inexperienced, as to what needed to be done. Further, I do not accept the contention of Mr Trim QC to the effect that a methodical, detailed examination, as envisaged by the Distribution Instructions did not imply a need for pole top inspections. As I will elsewhere point out, these were not classed as aerial inspections and the periodic need for them was painfully obvious on and illustrated by the findings of fact which I have made. That need points up the clear distinction made between mere patrols and methodical inspections.
Finally, it is clear that Zajer, at least implicitly, encouraged Henley (by his failure to comment adversely on the proposal) to pursue his scheme of deactivating the R5 recloser and associated sectionalizers and replacing them with fuses and actually assisted him to do so. I have found that Zajer did not warn Henley that such a scheme would not achieve his stated aim and would not be that which ETSA would adopt (if that was, in fact, the case - as put by Mr Trim QC to Henley). He also did not stress to Henley the imperative need to maintain the R1 recloser in the one shot to lock out configuration during periods of high fire danger, given the fuse configuration actually adopted.
Mr Greenwell argues that, both singly and also collectively, those situations established negligent conduct on the part of ETSA, which rendered it liable to contribute to any damages for which the Council was liable and/or to pay damages to it.
It is trite to say that a duty of care arises in situations in which it can reasonably be foreseen that the act or omission of one party is likely to involve risk of injury to another. However, as Deane J stressed in Jaensch v Coffey (1983-1984) 155 CLR 549 at 579, the width of such a concept is circumscribed by the notion of proximity. This is, of course, directed to the relationship between parties, in so far as it is relevant to the allegedly negligent act of one party and the resultant injury to the other. To make good a claim in negligence it must be demonstrated that such a duty existed, was breached and it gave rise to damage which was not too remote, in the sense discussed in March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 (“March v Stramare”).
In the instant case Mr Trim QC contended that the Council had failed to clear the first hurdle which it was required to surmount. He said that no relevant duty of care arose, because the evidence did not establish the requisite proximity between ETSA and it.
He argued that:-
the Council operated as an independent and autonomous electricity authority;
ETSA did not have or seek to exercise any authority over it or its activities;
the Council had not in fact sought relevant active involvement of that type by ETSA;
ETSA’s role was merely confined to reporting and making recommendations to Government;
it was entirely for the Council to decide its own requirements and formulate and submit its own budgets. It in fact obtained those funds sought by it where it could justify the proposed expenditure; and
any technical or other assistance rendered by ETSA was provided on an ex gratia basis in a situation of mutual co-operation, for mutual benefit.
These assertions cannot withstand serious scrutiny, in light of the findings of fact which I have made.
As I have pointed out, the independence and autonomy (in the respects relevant to this case) was more apparent than real. Whilst the Council certainly did enjoy a measure of autonomy in relation to the internal conduct of its undertaking and, after the subject fire, necessarily had to recognise requirements mandated by its insurer, it was effectively controlled and circumscribed in what it could do by the fiscal controls arising from the budgetary process earlier described.
Moreover, ETSA was well aware of the fact that the Council was dependent on it for technical advice and guidance, because it was only funded for employment of a minimal technical staff. As has already emerged, the ex gratia nature of assistance rendered did no more than reflect the fact that, if charges were made, this would increase the size of the operating subsidy and achieve nothing.
Furthermore, to say that it was entirely for the Council to decide its own requirements is, totally, to ignore the close, ongoing consultative processes which took place. There is no doubt that Zajer and other ETSA field officers told the Council employees, in the budgetary formulation stages, what was, or was not, acceptable and what provision ought to, or could be, made for particular purposes.
In practical financial terms the Council and, for that matter Henley (as the person primarily responsible for line safety) were able to do only what the ETSA officers chose to resource it to do and, in essence, operated within technical information parameters established by communications supplied to it, in either oral or written/printed form.
It is abundantly clear, on the evidence, that such was the relationship of proximity between the two entities that ETSA undoubtedly owed a duty of care to the Council to ensure that the latter had the means (fiscal, physical and in terms of timely information) with which to conduct its electricity undertaking (including construction works reasonably associated with it) safely.
In the circumstances as found it is, for example, quite unreal to accuse the Council of adopting a cavalier approach to line maintenance, as did Mr Trim QC. It is equally divorced from reality to aver, as he did, that the only duty had or assumed by ETSA was to provide correct advice when its advice was specifically sought.
Additionally, there can be no doubt that, in so far as ETSA supplied material and publications to the Council, it was under a duty of care to ensure that the correct items were supplied to fill the requisitions of the latter and to ensure that it had a system in place to assure automatic dispatch of relevant instructions and technical information to the Council.
Mr Trim QC went on to contend that, even if it could be shown that ETSA had, in certain respects, been in breach of any duty of care imposed on it, the Council had not established that any loss sustained was reasonably foreseeable, or any relevant causation within the principles espoused in March v Stramare. At best the evidence indicated negligent acts which were a pre-condition for loss to occur, but were not reasonably foreseeable and were not, as a matter of legal concept, causative of it.
Once again such assertions fly in the face of the factual findings in this case.
Mr Trim QC conceded, for example, that ETSA owed a duty of care in supplying materials to the Council. I have found that it in fact supplied 112 mm wraplocks instead of the 76 mm wraplocks ordered, with the consequence that the conductor of the Eagle Hill SWER was not securely affixed to the insulators - a situation which steadily became exacerbated by degradation of the neoprene. This was the immediate cause of the dislodgment of the conductor and the generation of the subject fire - a situation which was readily foreseeable and was in fact one of the dangers which ultimately led to the adoption by ETSA of the seizing clamp policy.
Whether it can be said that there was also some contributory negligence by the Council and/or its contractor is not to the point - although it cannot escape reiteration that the evidence generally and that led by ETSA itself renders it quite clear that, if incorrect size wraplocks are supplied, even an experienced worker might well be constrained to use them without coming to a realization that a mismatch was occurring. I have earlier dealt with this evidence and there is no point in retraversing it.
I reject the ETSA contention that it was not reasonably foreseeable that the wraplocks supplied would be used other than on 112 mm neck insulators. As I have already demonstrated, the contrary is patently the case.
It follows that causation has also been made out.
Equally, the failure of ETSA to inform the Council of problems likely to be experienced with wraplocks, its own policy decision to discontinue their use and the need to conduct both adequate patrols and inspections of the SWER lines and to see that such activities were adequately resourced was also fundamentally causative of what ultimately happened. I reject the suggestion that inspections contemplated by the relevant ETSA Distribution Instructions did not include pole top inspections, because these were aerial inspections to which a separate specific instruction related. Instruction 3M2L, in terms, focuses on inspections by aircraft and would not encompass inspections from an EPV.
There is no doubt that the maintenance regime as implemented by the Council was inadequate. It led to a degradation of conductor security which was virtually bound, ultimately, to precipitate, or at least facilitate, the type of incident which actually occurred.
The evidence patently reveals that it was the ignorance of Henley as to what patrols and inspections were necessary and what potential wraplock defects needed to be looked for which led to a clear failure, on the part of the Council, to set up and implement a proper and adequate system of periodic patrol and inspections. In any event the Council was only funded for an EPV not long prior to the subject fire (and then only after considerable agitation by Henley). He simply did not have the physical means, for example, to carry out any effective programme of pole top inspections until that time.
Henley was an energetic and dedicated worker. I accept his evidence that, had he known of the ETSA policy and potential problems with wraplocks and the content of the maintenance Distribution Instructions, he would have gone about his responsibilities in a very different way. He was left in the dark not only by non receipt of relevant instructions but, even more importantly, also by a failure of ETSA officers to identify to him the technical/operational requirements and then resource them within the budgets. Whilst Henley realised that wraplocks were no longer available through ETSA, he knew nothing of the history of their use, or of any need to conduct inspections of them or specifically look for particular problems or faults. Indeed even a fairly large air gap at a pole top, as seen from the ground, would not necessarily have been seen by him as significant. He had never used wraplocks.

The foregoing conclusions are sufficient to dispose of this matter. However, it is desirable, also, to say something about the claim in negligence based on the reaction of Zajer to Henley’s proposal to rely largely on a fused protection system in the summer months.
A number of issues were canvassed in this regard, although some of them are necessarily settled by my findings of fact. At the end of the day the critical aspects are the failure of Zajer to tell Henley that his scheme was misconceived and not in accord with ETSA practice (as asserted in the ETSA pleadings); and to actually lead him into a sense of false security by aiding him in implementing it and not stressing the need to set the R1 recloser to one shot to lock out during the fire season.
The high water mark of the ETSA contention on this topic was that, even if there was a breach of duty, causation has not been proved by the Council. There is, it was said, no evidence that the implementation of the scheme and a failure to switch R1 from automatic to one shot to lock out caused the subject fire. There was no positive evidence that, had the R1 and/or the R5 recloser (if operative) been set to one shot to lock out, no fire would have occurred.
It is undeniable that the precise mechanics of the generation of the subject fire were never addressed in evidence and that no witness directed attention to the issue whether, on an energised conductor striking the ground, one system or another would have been more likely to generate a fire. However, this does not give rise to the cadit quaestio scenario contended for by Mr Trim QC.
There are, in fact, two quite separate issues to be considered.
The first (and perhaps most important) is the evidence of Henley, which indicates that, had he been made aware by Zajer of the true technical situation and the fact that ensuring conductor security was the only real strategy which could achieve the level of security which he was seeking, he would not have proceeded with the scheme. The obvious inference is that this could well have focused his mind on a need for line inspections of a rigorous nature. As a matter of logic this was the only alternative means of ensuring that conductors would not become detached from insulators, fall to the ground and cause fires. It is to be remembered that this had been a major pre occupation of ETSA itself. As its own documentation reveals, an important rationale for the move to use of seizing clamps, in country areas, was to minimise the risk of fire.
The second is that it really becomes a question of what inferences naturally arise from the evidence. It is an obvious counsel of common sense that a situation in which successive pulses of high voltage electricity are transmitted down a conductor which has come down into inflammable material on the ground is far more likely to generate a fire than one in which a conductor is instantly de-energised by a recloser at the moment when it first strikes the ground.
Whilst no certainties can be divined from either situation it is plainly more probable than not that the first will more readily ignite potentially inflammable ground cover than the second.
I consider that causation has also been made out, apropos this issue, on the balance of probabilities.
It follows from the conclusions expressed above that the Council has proved that ETSA was a tortfeasor who was, or would have been, liable in respect of the same damage as that for which the Council is liable. The question then arises as to what contribution ought to be made by it in light of the findings which I have made.
That issue was not really canvassed by counsel at trial and, of course, can only, constructively, be addressed in light of the findings which I have now made. I will hear them as to this in due course.
Strictly speaking it is unnecessary for me to direct detailed attention to the causes of action based on the Fair Trading Act and the Misrepresentation Act. Lest I be incorrect in the conclusions which I have expressed, it is desirable that I venture at least some brief remarks with regard to them.

Claim based on the Fair Trading Act

The Council claim, as pleaded, seeks to invoke the provisions of both s 56 and s 58 of the above statute.
The former stipulates that a person shall not, in trade or commerce, engage in conduct that is misleading or deceptive, or is likely to mislead or deceive. The latter provides that a person, shall not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods and services, make false or misleading representations as to a variety of topics referred to in the section.
I have already set out the substance of the detailed pleadings under the statute and there is no need to retraverse that ground.
So far as the facts relied upon are concerned, it may reasonably be said that much the same primary issues as are relevant to the claim in negligence are also pertinent to this claim.
However, it is an essential pre-requisite to the invocation of both sections that the conduct complained of be shown to have been “in trade or commerce”. Moreover, it must be recalled that the Fair Trading Act came into operation on 26 October 1987 and did not have any retrospective affect.
As to the latter aspect, it follows that any alleged acts or defaults said to have occurred prior to that date cannot be relied upon by the Council to support this cause of action and are essentially irrelevant to it, other than to provide a background factual context.
Be that as it may, the critical initial issue is as to whether either of the sections are, in terms, applicable to the matters complained of by the Council.
As was pointed out in Re Ku-Ring-Gai Co-operative Building Society (No 12) Ltd (1978) 36 FLR 134 at 139 and, in effect, reiterated by the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 604, the relevant statutory provisions were:-
“... not intended to impose, by a side-wind, an overlay ... upon every field ... into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character.” [Emphasis added]
In the case at bar it might, for example, be said that the activities of ETSA, in supplying bulk electricity to the Council, were activities in trade or commerce. Thus any conduct related to those activities which fell within the purview of s 56 and s 58 of the statute might well attract the operation of their provisions.
However, the conduct complained of by the Council is not of that type. It essentially relates to the broader, non commercial dealings between the parties, in which ETSA played a role in administration of statutory schemes, in the aid of the Minister. These schemes were only indirectly concerned with the trading and commercial activities of the Council with consumers, in which ETSA itself had no beneficial interest.
This being so it is impossible to perceive how any claim based on s 56 and s 58 can possibly succeed.

Claim founded under the Misrepresentation Act

In prosecuting its claim the Council sought to found a cause of action on s 7 of the Misrepresentation Act.
That section provides that:-
7. (1) Where a contracting party is induced to enter into a contract by a misrepresentation made -
(a) by another party to the contract; or
(b).... by a person acting for, or on behalf of, another party to the contract; or
(c)by a person who receives any direct or indirect consideration or material advantage as a result of the formation of the contract,
and any person (whether or not he or she is the person by whom the misrepresentation was made) would, if the misrepresentation had been made fraudulently, be liable for damages in tort to the contracting party subjected to the misrepresentation in respect of loss suffered by him or her as a result of the formation of the contract, that person is, subject to subsection (2), so liable to that contracting party, in all respects as if the misrepresentation had been made fraudulently and were actionable in tort.”
All that need be said is that Mr Greenwell did not seek to develop any detailed submissions in support of his pleadings on this asserted cause of action.
The simple answer to it is, of course, that the Council neither pleaded nor proved the entry into any relevant contract, so as to invoke the operation of s 7. The cause of action has not been made out.

Conclusion

For the reasons above expressed I conclude that the Council has made good its claim to contribution by ETSA.
However, it will be necessary to hear submissions by counsel as to precisely what order ought to be made in that regard, in light of my detailed findings of fact. At this point I merely publish these reasons. I will adjourn to a date to be appointed for the hearing of those submissions.

[1999] SASC 117

26 March 1999