Telfer & Anor v Flinders Ranges Council & Ors (No 3) No. Scgrg-95-815 Judgment No. S142

[1999] SASC 142

TELFER & ORS v THE FLINDERS RANGES COUNCIL
(formerly THE DISTRICT COUNCIL OF HAWKER) and SEARLE;
ETSA CORPORATION, Third Party   (No 3)
[1999] SASC

1. Olsson J           On 26 March 1999 I published reasons which expressed my primary findings in relation to the issues arising between the defendant Council and the Third Party.  Having done so I adjourned consideration of the question of what precise order ought to be made against the Third Party as to contribution, in light of the primary findings.  I did so to enable counsel to consider the content of my reasons and present detailed submissions on the basis of them.

2. These reasons express my ultimate conclusions in light of those submissions.  In developing them I will adopt the same nomenclature as in the earlier reasons.

3. In essence Mr Trim QC contended that my findings implied that a considerable preponderance of causation of the plaintiffs’ damage was the outcome of the identified breaches of duty of the Council.  He argued that only a small amount of contribution ought to be awarded against ETSA.

4. He advanced that proposition on the footing that four bases of negligence emerged in relation to the Council and that, in their totality, these must be taken to be the main precipitating cause of the subject fire.

5. I will deal with his submissions as to these seriatum.

6. Negligence of Contractor in the Construction of the Eagle Hill SWER

1. The argument advanced on behalf of ETSA was that, had the construction of the Eagle Hill SWER been completed in a competent manner then the subject fire would not have occurred.

2. It was pointed out that Thornton gave evidence to the effect that he well knew the difference between 76 mm and 112 mm wraplocks.  It would be perfectly plain, in the event of a mismatch between a 112 mm wraplock and a 76 mm neck insulator, that an incorrect size wraplock was being used;  and that this would not result in a proper fixing of the conductor (T678).

3. Mr Trim QC submitted that I ought, therefore, to conclude that, when Thornton ran the Eagle Hill SWER conductor, it must have been obvious to him that ETSA had supplied the incorrect wraplocks.  Nevertheless, for some reason (perhaps, Mr Trim QC said, laziness or just not caring) he persisted in using them, well appreciating that the resultant conductor ties were unsatisfactory and insecure.

4. His argument continued that, because Thornton was paid by the Council to apply his expertise and knowledge of SWER line construction to the erection of the Eagle Hill SWER, he had to be taken to be “the agent to know” of the Council, within the concept discussed in authorities such as Blackburn, Low & Co v Thomas Vigors (1887) 12 AC 531 at 537-538 and Jessett Properties Ltd v UDC Finance Ltd [1992] 1 NZLR 138 at 143. Thus the Council was permanently fixed with Thornton’s knowledge of what had occurred and that knowledge enured up to the occurrence of the subject fire.  The Council failed to inform Henley of that situation.  This was the substantial cause of the subject fire.  The primary liability was, thus, that of the Council.

5. The initial point to be made is that the factual basis upon which ETSA sought to erect its first contention cannot be accepted.

6. Quite apart from my conclusion that Thornton was a generally unsatisfactory witness and was clearly seeking to distance himself from any factual scenario which might be seen to inculpate him in negligence, what Mr Trim QC said does not sit comfortably with the express findings of fact made by me in paragraphs 168, 169 and 470 of my earlier reasons for decision.  My conclusions derived not only from what had occurred at the hands of experienced line construction contractors, but, also, the content of certain ETSA documentation.

7. The plain fact was that mismatches could and did readily occur for the reasons which I expressed and need not be repeated here.  The evidence suggested to me that this risk was even greater than normal where, as was the situation here, the problem was not the result of one or two aberrant wraplock sizes amongst a quantity of correct size items, but of the supply of a full set of mismatched wraplocks with the relevant insulators.

8. It is quite clear that, in such circumstances, even a well experienced linesman might readily use the mismatched wraplocks and not realise what was occurring, albeit that the fit was not as snug around the neck of the insulator as would normally be desired.  Where all wraplocks were mismatched there would have been nothing to compare the fit or provide an immediate contrast with, on the particular job.  The contention advanced by Mr Trim QC is, in reality, destroyed by his own client’s administrative documentation, to which I made reference in my reasons.

9. It follows that the first point relied upon falls to the ground at the outset and there is no requirement to examine the applicability of the “agent to know” concept.

10. Inadequate SWER maintenance regime

1. Mr Trim QC referred to the content of paragraphs 474 - 476 of my reasons for decision as the basis of his second contention.  He submitted that the evidence led at trial and accepted by me indicated a series of quite florid line construction/security defects which, plainly, must have existed at the time of the subject fire and were simply not observed on any of the line patrols - not even after the EPV had been procured.

2. He contended that the failure to observe and follow up these indicated inadequate conduct by Henley of line patrols, as well as an absence of regular, effective, line patrol activity.  Had Henley conducted such activity properly, not only would the florid defects have been detected, but these would, almost inevitably, have led him to look at the SWER line conductor security aspects more generally and at pole top level.  That, in turn, would have revealed the parlous state, inter alia, of the security of the Eagle Hill SWER and the mismatches on it.

3. Moreover, when Henley took up his duties, he must have realised that he had no current instruction such as 3M1L or 3M1F under the “Maintenance” tab of the ETSA Distribution Instructions, but did nothing to pursue that issue with ETSA.  It may even have been that Thornton received 3M1L, but had lost it.  It was Mr Trim’s argument that had Henley adequately followed this up he would have become aware of the need to implement a regular and effective maintenance programme, which involved both patrolling and periodic methodical inspections of the SWER line hardware.  His failure to pursue the matter was, in itself, negligence of a high order.

4. There is, I consider, rather more substance in this point, although I am of opinion that ETSA seeks to take it somewhat further than the evidence justifies.

5. My findings indicate that Henley was not delinquent in seeking to ensure that he had adequate and complete documentation from ETSA.  As I earlier pointed out, he took steps, on two occasions, to have the content of the books in his possession, and in particular the E-book content, brought up to date.  Moreover, it was not as if the Distribution Instruction Book (exhibit D7) was necessarily always empty under the “Maintenance” tab.  That section was also the home for instruction 3M2L related to aircraft safe working procedures with line maintenance, which may well have been present, at least from mid 1990.  Further, this book was a loose leaf publication and Henley was not necessarily to know what was, or was not, still current at any specific point in time.

6. It seems to me that the real criticism to be advanced against Henley was that, being unfamiliar with wraplock hardware, he does not appear to have taken any steps to consult with appropriate ETSA officers to inform himself as to any vagaries of such hardware or, generally, what was an appropriate preventative maintenance regime in relation to SWER lines constructed with ties of this type.

7. This failure and the consequential failure actually to implement a fully effective preventative maintenance regime must be seen as a substantial causative factor in relation to the subject fire.

8. Failure to have Reclosers in operation and set at “One Shot to Lockout”

1. It was contended on behalf of ETSA that, given the finding against it, the Council was equally at fault, in that the R1 recloser ought to have been set to one shot to lockout as soon as it became obvious that a period of high fire danger was developing.  This had not been done.

2. As to this point I have no hesitation in rejecting the submissions made.  These totally ignore the point that the whole concept upon which Henley proceeded (with, at least, the tacit concurrence of Zajer) was that the fuses installed would instantly blow before any relevant recloser lock out.  Had he been properly advised by ETSA he would, undoubtedly, have done that which was implemented after the subject fire.  I entertain no doubt that the fuse concept would have been abandoned and all reclosers would have been set to one shot to lock out at the commencement of any periods of high fire danger.

3. I conclude that the only reason why the R1 recloser had not also been placed on that setting, on the day of the subject fire, was because Henley was labouring under what proved to be the delusion that the fuses would instantly blow in the event of a line shorting out.  The fact that, on the day, he was proposing to set the R1 reclosure to one shot to lock out was no more than an obvious additional precaution in relation to the whole system and, specifically, the main township supply.

4. Wraplocks as an unsatisfactory product

1. Finally, Mr Trim QC based an additional argument on my findings concerning the inherent problems with wraplocks as conductor securing devices - at least, within the South Australian distribution environment.

2. He submitted that when Henley came to Hawker he was totally unfamiliar with wraplocks.  At the commencement of his employment he immediately became aware that they were in extensive use throughout the Hawker SWER system.  Despite this he took no steps to enquire into their performance or any maintenance requirements with regard to them.  This was so notwithstanding that these items were, by then, no longer supplied by ETSA and that an enquiry would have revealed that one aspect of the rationale of the use of seizing clamps by ETSA instead of wraplocks was to minimize the risk of bush fires.  It was ETSA’s contention that if Henley had made the obvious enquiries he would have been given information which ought to have alerted him to a need to give careful consideration to the state of security of the Hawker SWER system and what needed to be done to ensure adequate protection against bush fire generation.  His failure in the above regard also constituted substantial negligence.

3. I think that there is also some force in this point.  It is surprising that, in the course of the patrolling actually carried out, Henley did not observe some of the more florid defects revealed in the photographic material.  Had he done so and then attended to the problems, this may have triggered off a realisation that a wider and closer inspection of the SWER system security was desirable.

4. However, it is mere surmise as to whether this would necessarily have been so or not.  Some of the florid defects were quite clearly the product of discrete instances of poor initial workmanship, or later maintenance.  They might not necessarily have sounded alarm bells about the integrity of the overall system.  It is easy to be wise after the event.

5. It must never be forgotten that, as I have found, the budgetary allocations made to the Council reflected its “shoe string” staffing and operation.  The evidence clearly indicates that Henley and his assistant were well extended in coping with day to day requirements.  It is an undue counsel of perfection to suggest that they should have been far more alert to the need for much more proactive measures than actually occurred.  The evidence suggests to me that day to day “survival”, in the sense of coping with immediate, priority tasks, was the norm.  Their opportunities and capacity for reflection and more extensive preventative maintenance activities seem to have been very limited - a situation which was, quite directly, the inevitable result of what ETSA was prepared to make available in the operating budget allocations.

6. It follows that the evidence in this case and my findings in relation to it fall far short of justifying the approach sought to be espoused by counsel for ETSA.  I do not accept that the vast preponderance of causative fault lies with the Council, although I do accept that its contribution was not inconsiderable.

7. It further follows that I am unable to accept Mr Greenwell’s contention that 100% contribution ought to be ordered against ETSA.

8. I agree with him that the primary causative factor was the supply by ETSA of the incorrect size wraplocks.  Moreover the evidence certainly does not warrant a finding that Thornton realised that this was the situation and knowingly proceeded to use them in an irresponsible manner.

9. I also accept that Henley did not become aware, at any material time, of problems with the use of wraplocks and of detailed preventative maintenance strategies of which he ought to have been informed by ETSA.  I do not accept that, had he specifically raised either of these issues with appropriate ETSA officers, he would not have been any wiser or better informed than in fact he was, given material already available to him.  My express findings run counter to Mr Trim’s submissions in that regard.

10. However, none of these facets operate to gainsay the fact that the Council must be held liable to contribute a proportion of the liability to the plaintiffs which fairly reflects the proper degree of its causative responsibility for what occurred.  That proportion, whilst not insubstantial, must clearly be less than that of ETSA.

11. At the end of the day it is not possible to be precise and the broad axe must be wielded.  I have arrived at the conclusion that ETSA ought to be ordered to contribute 60% of the ultimate quantum of liability properly found in favour of the several plaintiffs.  Judgment should, in due course, be entered on the Third Party claim accordingly.

12. In accordance with arrangements made with counsel I merely publish these reasons without formally entering the requisite judgment.  I direct that the Council bring in minutes of judgment, which I will consider on my return from leave.  Time for appeal will not, of course, run until formal entry of that judgment.

13. I reserve the right of the parties to speak to the minutes.  All questions of costs will be adjourned for further consideration at a mutually convenient date, to enable Mr Trim QC to advance the arguments which he foreshadowed in that regard.