Vanderwerf v Tesselaar
[2011] VCC 966
•23 June 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
GENERAL DIVISION
Case No. CI-09-04419
| MARINUS VANDERWERF | Plaintiff |
| v | |
| ANTHONY TESSELAAR | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9, 10, 11, 14 February 2011 |
| DATE OF JUDGMENT: | 23 June 2011 |
| CASE MAY BE CITED AS: | Vanderwerf v Tesselaar & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 966 |
REASONS FOR JUDGMENT
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Catchwords: OCCUPIER’S LIABILITY – electric shock – duty of occupier to a tradesman – Wrongs Act, PART II – implied warranty – breach of Section 43(2) Electricity Safety Act 1998.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett | Ryan Carlisle Thomas |
| For the Defendant | Mr B McTaggart | Lander & Rogers |
| HER HONOUR: |
1 The plaintiff suffered injury on 15 December 2006 (“the said date”) whilst undertaking plumbing work at 353 Monbulk Road, Silvan (“the premises”), a domestic residence owned and occupied by the defendant.
2 On that date, the plaintiff was working between the floor and ground when an unearthed, unidentified, unprotected live electrical wire came in contact with his thumb and he suffered an electric shock (“the incident”).
3 It is alleged by the plaintiff that the defendant was negligent, inter alia, in his failure to advise of the presence of the wire; to provide safe premises for him to perform the work required of him; to take reasonable care for his safety; and to adequately or at all to identify the presence of a live wire at the premises.
4 The plaintiff also alleged that it was an implied term of the agreement that the defendant would provide premises at which the plaintiff could work which were as safe for that purpose as reasonable care and skill on the part of anyone could make them.
5 Further, it is alleged that the defendant breached s.43 of the Electricity Safety Act 1998 (“the ESA”) having installed electrical equipment which it knew or should reasonably be expected to know was unsafe or would be unsafe.
6 The defendant did not admit the incident occurred and alleged contributory negligence on the part of the plaintiff. This allegation was later withdrawn in closing submissions.
7 During the hearing it was not strongly contested that the incident occurred and that the plaintiff suffered an electric shock as a result thereof. The main issues in dispute were negligence and breach of statutory duty, and the extent to which the plaintiff suffered loss and damage.
The Plaintiff’s Evidence
8 The plaintiff is presently aged fifty eight, having been born on 5 October 1952. After school he completed a plumbing and gas fitting apprenticeship and has been self employed in that trade for thirty five years. In much of that time the plaintiff was the sole income earner in the partnership with his wife, known as “L M and M L Vanderwerf”.
9 The work carried out by the plaintiff involved general plumbing work for private householders and also plumbing on new building sites.
10 Prior to the said date, the plaintiff had known the defendant for a long time. They are both of Dutch extraction and their families had had some contact in the local church.
11 When the defendant wanted the plaintiff to do a plumbing job, his secretary would call him. After completing the work, the plaintiff provided an invoice and was then paid.
12 Prior to the said date, the plaintiff performed work about six times at the premises, the most recent job being to replace spouting on 3 May 2004 (“the spouting job”) as confirmed by a Compliance Certificate of that date which set out:
“Concealed gutter, all new downpipes, capping overflows in the same place. Two new downpipes left hand side between backdoor and the pump.”
13 The plaintiff was called out to the premises to do the spouting job as the spouting was rusted and leaking. When the plaintiff replaced the spouting, he had cause to try and find a power point. When doing so, he noticed the switchboard shown in Photograph 2 was out of date and it had old pull-out wire fuses.
14 On that date, the plaintiff spoke to the defendant at the back door of the premises, where the plaintiff told him that the meter box was out of date and “it really should have a safety switch and be looked at”.
15 In cross-examination, the plaintiff said he had never in his career as a plumber, when he had to go under a building, asked the building owner whether there were any problems under the house from an electrical point of view. The plaintiff never had any expectation that a house owner would have made any inspection under a house from an electrical point of view before the plaintiff worked there.
16 In December 2006, the plaintiff received a telephone call from the defendant’s daughter and secretary, Anna Marie Tesselaar. She advised the plaintiff there was very little or no water coming out of the bath, and an arrangement was made for the plaintiff to attend the premises on the said date.
17 Ms Tesselaar was at the premises when the plaintiff arrived. The plaintiff was wearing overalls, t-shirts and Blundstones, and carrying a torch.
18 The plaintiff had a look in the bathroom, and his preliminary view was that the gal pipes were rusted up. Accordingly, he needed to have a look under the house where the pipes went before making a material list of what was needed.
19 The premises are situated on concrete stumps. The plaintiff went under the premises through the manhole shown in Photograph 2. The floor was about 800 millimetres from the ground at the entrance. The plaintiff had to crawl about 25 to 30 feet and into an area about 400 millimetres from the ground, to try to locate where the gal connected to the copper pipe.
20 When he got close to that area, because it was so narrow, the plaintiff had to put his hand underneath to look at where the copper pipe was (Photograph 3). As he reached underneath he could feel a sting on his finger (“the incident”). He looked up. His torch had fallen and a loose wire just got between his finger and just clamped tight between his two fingers and onto his thumb.
21 At the time of the incident the wire was on the ground on the other side of the beam to that shown in the photograph and it was not connected to a junction.
22 The plaintiff’s hand “went to gripping the wire straight away”. He was not wearing gloves. He had two burn marks on his thumb on the palmar tip where it had come in contact with the wire.
23 The plaintiff thought honestly he was going to die. He knew he had had an electric shock. He was in a narrow, underfloor space and his finger was cramping, and he was holding onto the wire in his hand. He could feel the current pulsating through his body. He was lying on his side, half on his stomach, looking up. He thought he was feeling anger more than anything. He just wanted to get off the wire because knew he was going to die. He turned and the wire just slowly fell out of his hand, pulled out of his hand, which was a big struggle at the time.
24 The plaintiff confirmed he could not pull the wire out as he had to roll off it. He did not have the space and it was impossible to pull it out. The plaintiff agreed he told Mr Grossbard, and it was correct, that he thrashed around in the enclosed space because of the current, but he did not eventually manage to pull the wire out as Mr Grossbard recorded – that was absolutely incorrect.
25 It would be almost impossible to physically remove the wire off his hand because his whole body spasmed. He was lucky enough to have enough room to move and he was pretty angry.
26 The plaintiff agreed he went into spasm involving his arm and the top of his body. He agreed he told the Medical Panel he managed to crawl away and the wire pulled out from between his finger and his thumb. He explained he was on an angle going sideways away from the wire. He may have lost consciousness or blacked out but he knew he had “a vision”.
27 The plaintiff initially thought the contact was much longer – “It seemed like this took place forever – about twenty minutes” – but really it was only between one and five seconds.
28 The plaintiff confirmed that he told the Emergency Department at the Maroondah Hospital (“the Hospital”) that he came in contact with a live wire for a few seconds, but then said he was not really sure what he had told them. He disputed the Hospital note that there were no burn marks as there were two marks on his thumb. He agreed there were some abrasions from crawling and rolling under the house.
29 After disconnecting himself from the wire, the plaintiff started to cramp up on his left side. He was not too good mentally – “it was a pretty horrendous shock”. He crawled outside and then went into the premises.
30 After the incident the plaintiff spoke to Anna Marie Tesselaar in the kitchen at the premises. He told her he had had an electric shock and that he was cramping up, and he actually showed her his chest. He could see his heart was thumping.
31 In cross-examination, the plaintiff denied he said to Ms Tesselaar, “Didn’t you hear that?” He denied he told her, “I’ve just electrocuted myself into the hand”. He denied she asked him if he was okay and asked him what he needed and offered to get him water or an ambulance or take him to hospital. He agreed she was concerned. It was not his recollection that she said she would call the doctor. The plaintiff then agreed that Ms Tesselaar appeared appropriately worried about him and she started to call the doctor.
32 There was also a further conversation at this time. Ms Tesselaar said that two months earlier someone had done some work in the bathroom area at the premises like electrical work, and also that they had been waiting for eighteen months or waiting for a while for an electrician to upgrade the power board.
33 When asked about this conversation later in cross examination, the plaintiff said Ms Tesselaar told him an electrician did some work up in the bathroom hallway area two months prior to the said date. He thought he had not mentioned a hallway because the hallway and the bathroom were right next to each other, “so it is the same spot”.
34 The plaintiff did not ask her further as to why they had not arranged for someone to upgrade the switchboard if they had been waiting eighteen months for an electrician to do so.
35 Following the incident, the plaintiff considered calling an ambulance but thought it was quicker just to go straight to hospital. By the time the plaintiff arrived at the Hospital, the right side of his body was also becoming tight. He stayed at the Hospital for about twenty two hours, during which time the doctors looked for the exit wound.
36 The plaintiff did not know whether he had complained of severe or significant left shoulder pain or restriction whilst at the Hospital.
37 When it was suggested to the plaintiff he had not complained of a left shoulder problem at the Hospital, the plaintiff said he obviously did not complain, but he then said he did tell them and obviously they had not written it down.
38 The plaintiff denied he told Dr Weissman that about four weeks after the incident he developed an ache in his left shoulder. There were aches straight afterwards. The plaintiff had pain effectively from the moment of the incident but it got worse as time went on.
39 Whilst in Hospital the morning after the incident, the plaintiff agreed the pain in his hand was resolving and he had a slight headache but still had pain in his hand. No one actually measured his level of movement at the Hospital.
40 The plaintiff disagreed with the Hospital note that set out he had no issues on discharge the following morning. His arm was definitely sore and it was wrong to say there was no altered sensation. He had a headache. He agreed, as was noted, he was feeling well and comfortable on discharge except for his shoulder pain. He ended up saying he would have complained of significant shoulder pain at the Hospital but then said obviously he had not.
41 About a day after he was discharged, the plaintiff felt like someone had run over his chest with a steamroller. He felt like that for a week and a half to two weeks. During that time, the plaintiff was unable to work.
42 The plaintiff has not heard from the defendant or his daughter since the said date.
Medical Evidence
43 In cross-examination, the plaintiff said “there was depression” before the incident but he never took anything for it. He did not think he was taking anti- depressants at the time of the incident and told Dr Weissman he started taking them twelve months thereafter.
44 When it was pointed out to the plaintiff that the Hospital Admissions Summary set out he was taking anti-depressants at the time of the incident, he said he might have been too embarrassed to tell Dr Weissman this was the case.
45 In re-examination, the plaintiff confirmed there was a link between his marriage breakdown and the prescription of anti-depressants.
46 Prior to the incident, the plaintiff had not had any problems with his shoulders. Since that time however, left shoulder pain has continued.
47 Following the incident, the plaintiff saw Dr Ubhi, his general practitioner. He did not provide any helpful treatment to the plaintiff and he was dissatisfied with Dr Ubhi’s treatment.
48 The plaintiff then located another general practitioner, Dr Mason, at Mt Evelyn, a month after the incident, whom he has seen ever since. In cross- examination, the plaintiff agreed he had first seen Dr Mason nine months after the incident.
49 As his left shoulder problems continued, the plaintiff was referred to orthopaedic surgeon, Mr Dalziel, who organised an ultrasound and gave the plaintiff two injections into his shoulder. The first injection worked for probably two weeks, and the second one did not work at all.
50 Ultimately, Mr Dalziel recommended surgery, and on 12 May 2008, he performed an arthroscopy and decompression on the plaintiff’s shoulder (“the surgery”).
51 Between the incident and the surgery, after the initial time off work, the plaintiff was unable to work to full capacity. He required five weeks off work after the surgery. His left shoulder was then a little bit better but after returning to work it progressively worsened and he also started to get pain in the left side of his neck.
52 There has been no further treatment suggested. The plaintiff continues to have pain in his left shoulder and in the left side of his neck.
53 In examination-in-chief, the plaintiff demonstrated he could hold his left arm out to the side to slightly below 90 degrees. He had a similar level of movement when saluting with his left arm and then it seemed to ache. He could push his left arm backwards maybe 10 to 20 degrees. The plaintiff explained that other people could lift his arm higher. Right shoulder movement was normal.
54 In cross-examination, the plaintiff confirmed that he has had very significant restricted movement of his left arm since the incident. It was not as bad in Hospital but it became worse. He was aware of significant pain and restriction of movement whilst in Hospital and when he was discharged he felt like he had been steamrolled. He confirmed that restriction of movement had persisted ever since.
55 The plaintiff was asked about an examination with Mr Grossbard in September 2009. Mr Grossbard recorded the plaintiff could bring his arm up in front of him, flexing it to 120 degrees. The plaintiff said he thought his arm has worsened, and agreed he could have had that level of movement on that occasion.
56 On examination by Mr Weaver on 12 January 2011, Mr Weaver reported the plaintiff demonstrated no less than 160 degrees of forward flexion. The plaintiff said that is not the case, and he had no idea why Mr Weaver recorded that. The plaintiff agreed there was a degree of stiffness in his neck at that time.
Personal and Financial History
57 The plaintiff has four adult children and lives with his son.
58 About ten years before the incident, the plaintiff bought a house in Toorak to transport and erect on a block in Falls Road. In the ten year period before the incident, the plaintiff had completed about ninety nine per cent of this task and also erected a granny flat at the Falls Road site.
59 At the time of the incident, the plaintiff had been separated from his wife for about six months. They did not separate in 2007 as Dr Weissman recorded. After separation, the plaintiff continued to work on the flat and the house and he moved into the workshop on the same property. The plaintiff denied he had separated from his wife in 2007 as Dr Weissman had recorded.
60 Then followed fairly messy, unpleasant property proceedings which have now concluded.
61 From the 2002-2003 financial year, the plaintiff’s taxation returns set out his income was effectively half of the partnership income and he was the sole generator of that income.
62 In the 2006-2007 financial year, the partnership income went down to virtually nil and the plaintiff then started to trade solely under his own name.
63 The plaintiff confirmed partnership earnings after the deduction of expenses as follows:
Income from Partnership
Financial Year Gross Income Partnership Distribution to the Plaintiff
2003 $51,480.00 $25,470.00 2004 $48,494.00 $24,247.00 2005 $25,816.00 $12,908.00 2006 $18,046.00 $9,023.00
64 The plaintiff explained the fairly steady decrease in his income was because he was working on the house and the granny flat.
65 In the 2006-2007 financial year, partnership income was minimal. His earnings as a sole trader were as follows:
Individual Business Income
Financial Year Gross Business Income 2007 $12,669.00
2008 $18,565.00
2009 $35,142.00
2010 $35,895.00
66 The plaintiff agreed that there was an increase in earnings over recent times but not returning to the 2003 to 2004 levels. He confirmed that in 2003 to 2004, his gross takings were $128,395.00, whereas in 2009, they were $95,531.00.
67 In cross-examination, the plaintiff confirmed that in the 2003-2004 financial year, the profitability of the business was around $50,000 but it could not keep going at that rate because of the time he was required to spend working on the other properties.
68 The plaintiff confirmed there was a drop in profit from $48,494 in the 2003- 2004 financial year to $25,816.00 the following year, which he explained was brought about by his involvement working on the other properties.
69 The plaintiff denied that the fact the gross receipts of the partnership in the 2003-2004 financial year were $109,295, and only $4,000 less the following year indicated he was doing the same amount of plumbing work.
70 The plaintiff was cross-examined as to an increase in motor vehicle expenses from $5,000 in the 2003-2004 financial year to $18,147 the following year. The plaintiff denied that this increase in expenses caused an apparent drop in income, not the fact he was working on the granny flat and house.
71 In cross-examination, the plaintiff explained that, having finished the other properties, there was no reason that he would not have returned to full time plumbing work.
72 The plaintiff was asked about the history recorded by Dr Weissman of working three to four days a week in July last year. The plaintiff said he had got worse since then, but he agreed that his income had risen quite significantly in recent times, with a $35,000 profit in the last couple of years.
73 Putting together all the work the plaintiff does at present, it adds up to about two to three days a week.
74 In re-examination, the plaintiff agreed that the labour component in the 2003/2004 financial year was $61,978. That component was $56,058 in 2004/2005, $48,965 in 2005/2006 and $32,716 in 2006/2007.
75 Since the incident, the plaintiff has been unable to do full unrestricted work. Any lifting above his head is just too sore on his shoulder and he cannot do it. He does smaller jobs not involving lifting or heavy digging. He basically does no roof work unless there is someone to give him a hand, as the lifting involved in that task is too heavy and difficult. The plaintiff gets to the point where his left arm will just let go so he cannot do it.
76 The plaintiff cannot do work on a site from scratch as the machine work and trenching is too hard on his shoulder. Since the incident he has been unable to work in confined spaces because he gets claustrophobic.
77 If the plaintiff does easy work, his shoulder is pain free but he basically takes Panadeine Forte every night. His condition is stable. He can sleep for a short time on his left side but most of the time he sleeps on his right side
78 In the past the plaintiff enjoyed riding his mountain bike about twenty kilometres a few times a week on a railway track from Mt Evelyn to Warburton. The plaintiff has not been able to resume bike riding since the incident because of his hand and shoulder aching. His left hand tingles a bit when driving but it is not too hard driving because he has an automatic car.
The Plaintiff’s Medical Evidence
79 Dr Mason, general practitioner, first consulted the plaintiff on 17 September 2007. The plaintiff then reported being electrocuted while working under a house in late 2006 when a live wire caught his left hand. Since that time he had suffered with pain in his left shoulder and neck.
80 Examination revealed painful abduction of the shoulder to around 120 degrees with full range of neck movement. Dr Mason noted a CT scan of the plaintiff’s neck on 19 September 2007 showed minor degenerative and osteoarthritic changes, with no acute changes suggestive of a link with the incident.
81 A cortisone injection was undertaken into the plaintiff’s left shoulder bursa on 28 September 2007. On 16 October 2007, there were signs of initial improvement, with the plaintiff reporting pain free movements with abduction up to 120 degrees.
82 On review on 9 November 2007, the initial benefits had been lost. Abduction again was painful and actively the plaintiff could only get his left shoulder to 90 degrees, and passively to 180 degrees with pain.
83 Repeat ultrasound showed a persistent bursitis and tear in the left shoulder. There was a further cortisone injection on 14 December 2007 with little benefit and the plaintiff was referred to Mr Dalziel, who proceeded to surgery.
84 The plaintiff was seen again by Dr Mason on 1 April 2009. The plaintiff continued to have active abduction of his shoulder to 90 degrees with pain, and reported neck and thoracic pain.
85 Ultrasound scanning of the left shoulder on 8 April 2009 was reported to show persistent bursitis and a persistent tear.
86 Dr Mason last reported following an examination on 1 December 2010. He noted the plaintiff’s left shoulder movements remained impaired. The plaintiff could only actively abduct his shoulder to 90 degrees and his ability to flex the shoulder forwards was reduced to 120 degrees. He complained of ongoing stiffness in the shoulder and some pain, for which he required the occasional dose of Paracetamol Codeine.
87 Mr Dalziel, orthopaedic surgeon, wrote to Dr Mason on 4 March 2008, thanking him for the referral of the plaintiff.
88 Mr Dalziel advised that the plaintiff continued to have significant pain in the shoulder since the incident. The ultrasound suggested a full thickness tear of the rotator cuff. Mr Dalziel advised he was not certain where the origin of the plaintiff’s pain was and he offered to arthroscope his shoulder and repair the tendon. Mr Dalziel commented in other people he had seen who had had electrocution episodes, they could retain pain as a consequence of that experience.
89 In a subsequent report following examination on 17 June 2010, Mr Dalziel advised that the ultrasound prior to surgery suggested a full thickness tear of the rotator cuff but at arthroscopy this was not confirmed.
90 On examination, the plaintiff was found to have a good passive motion of the arm, impaired strength and impaired use of the arm, based on the weakness and the ongoing pain attributed to the electrocution and the effect of that process on the nerves of the arm.
91 Mr Dalziel noted most of the shoulder and left arm symptoms were associated with pain and weakness.
92 Mr Dalziel thought the plaintiff was able to return to work in a modified capacity in both the type of work he did and the duration for which he worked. He thought the plaintiff’s situation had stabilised sufficiently and could be regarded as permanent and stationary and there was reasonable time to compensate him for his ongoing pain, limitations in the use of his left arm because of ongoing ache and pain and subjective weakness.
93 Mr Grossbard, orthopaedic surgeon, examined the plaintiff on 29 September 2009.
94 The plaintiff told Mr Grossbard of working under the house on the said date when he touched an electrical wire. His hand spasmed around the wire and he had difficulty letting go of it. The plaintiff was not sure how long he was holding onto the wire but he thought he was going to die.
95 The plaintiff told Mr Grossbard that during that brief period he thrashed around in the enclosed space and eventually managed to pull the wire out of his hand using his right hand.
96 The plaintiff told Mr Grossbard he had immediate pain in the whole of his left arm and chest. He described an aching sensation and said he was able to crawl from under the house. He was very shaken but drove himself to the Hospital where he was monitored for the next day. The plaintiff told Mr Grossbard that he was not able to find any exit wound although he had an entry wound on the front of his left thumb.
97 The plaintiff told Mr Grossbard that he complained of shoulder aching and pain in his shoulder and arm for several months and sought medical advice from his local doctor who arranged an x-ray and ultrasound. The plaintiff was not able to return to work for a period of time and then was referred to Mr Dalziel, who undertook three or four injections, and ultimately surgery.
98 Thereafter, the plaintiff was off work for a couple of months. He admitted that since the surgery his pain was a little less, but the generalised arm and chest ache had not changed.
99 The plaintiff told Mr Grossbard he could do most things at work except roofing. He described pain on the top of his left shoulder with an ache on the lateral side of the upper arm, present most of the time, and worse after activity. He had difficulty reaching backwards and thought he was losing movement. His arm ached if he lifted above his head level and he described occasional tingling in his hand. He had some neck pain and associated intermittent headaches as well as an ache that radiated down the middle of his back. He had some difficulty turning his head to the right whilst driving. He told Mr Grossbard he could do all home maintenance and shopping.
100 On examination, there was mild midline tenderness of the cervical spine and restriction of movement. There was no muscle wasting around the shoulder, although the left shoulder did tend to droop compared to the right.
101 There was restriction of shoulder movement, with abduction 80 degrees; adduction 30 degrees; flexion 120 degrees; extension 30 degrees; external rotation 90 degrees; and internal rotation to 40 degrees. With both elbows tucked into his sides, external rotation was also significantly limited.
102 Mr Grossbard considered the plaintiff had an electrocution related injury affecting his left arm, shoulder and neck. There was evidence he had a small rotator cuff injury with associated bursitis, although Mr Grossbard thought it was not possible to be certain they were the result of the incident injury.
103 Irrespectively, the plaintiff had had a subacromial decompression of the shoulder and a resultant global reduction in movement consistent with a degree of capsulitis. Mr Grossbard noted the plaintiff indicated his pain was not really changed following surgery, which Mr Grossbard thought would throw doubt onto the shoulder being the primary site of pain.
104 Mr Grossbard was uncertain as to the location of the plaintiff’s pain, but certainly he thought the shoulder was suspicious but there was also a possibility the plaintiff’s pain may be referred from his neck. He noted there was a degree of degenerative change over several levels between C3 and C7. Mr Grossbard thought that the pain on the side of the upper arm and the reduction in shoulder motion suggested the shoulder as being the major site of symptomatology. He considered there was no further treatment and overall he thought the plaintiff’s situation was stable.
105 Dr Weissman, psychiatrist, examined the plaintiff for medico-legal purposes on 29 July 2010.
106 In terms of his psychiatric history, the plaintiff told Dr Weissman he had probably been depressed for about thirty years. He reported an unhappy marriage as being part of the depression. The plaintiff told Dr Weissman the depression only “came out” after he separated from his wife.
107 The plaintiff told Dr Weissman that in 2007 his doctor prescribed an anti- depressant for him, that he was depressed because of a bit of everything at that time, including his longstanding mild depression over thirty years, coping with the electrocution, his parents’ deaths and separation from his wife.
108 The plaintiff told Dr Weissman of the incident circumstances. Whilst working under the house with a torch he thought an ant had bitten his left thumb. When the torch fell and shone on his hands he saw a live wire had latched onto his left thumb between his left thumb and finger and he could not let go. The plaintiff had no doubt he was going to die at that point.
109 The plaintiff told Dr Weissman that the electrocution probably lasted somewhere between one and five seconds and he believed he blacked out briefly. He told him his body turned naturally with the movement and the live wire fell out of his hands.
110 The plaintiff was able to crawl out from under the house and the daughter of the occupant called his doctor and he was then taken to hospital.
111 Following the incident, the plaintiff had about four weeks off work.
112 Dr Weissman noted the plaintiff told him that in the weeks after the incident he developed ache in his left non dominant shoulder and had trouble lifting.
113 At the time of the examination, the plaintiff was working about three to four days a week, because it had taken him a while to recover from the surgery. The plaintiff told Dr Weissman he had to compensate for his pain and injury and did less work that involved lifting overhead and no roof work and he was doing more carpentry.
114 The plaintiff told Dr Weissman he took Effexor, 75 milligrams daily; Panadeine Forte as required; and an anti-inflammatory tablet.
115 The plaintiff described his current emotional state as “good” and said he did not feel depressed or anxious.
116 The plaintiff told Dr Weissman his interests, energy and motivation were slightly diminished since the incident. He sometimes thought about the incident but he was not scared of being electrocuted.
117 On mental state examination, the plaintiff’s speech was fluent and normal. The quality of his affect was reactive and responsive. His thought stream was normal and there was no formal thought disorder.
118 The content of his thinking revealed some unresolved grief in relation to his parents’ deaths, occasional flashbacks of the incident, mild residual symptoms and features of traumatisation directly related to the incident.
119 There were no formal abnormalities of perception, such as illusions or hallucinations, and no bad dreams. The plaintiff had some feelings of claustrophobia whilst crawling under houses, and wariness and apprehension regarding future electrocution.
120 Dr Weissman considered the plaintiff’s cognition appeared to be grossly intact and his insight and judgment were fairly normal, unremarkable and intact, and he came across with a positive attitude.
121 Dr Weissman thought the plaintiff was a genuine historian and gave a straightforward account with no embellishment.
122 Based on Dr Weissman’s assessment, the plaintiff’s depression was partly related to coping with the consequences of the incident. In addition, he had had more longstanding chronic mild depression over a number of years, with he and his wife separating during 2007, as well as the death of his parents not long before the incident.
123 Dr Weissman thought the plaintiff experienced mild residual symptoms and features of traumatisation but not sufficient to warrant a diagnosis of a full blown Post-Traumatic Stress Disorder.
124 He thought the plaintiff did not require any psychological or psychotropic treatment or intervention. He considered that the plaintiff’s prognosis from a psychiatric perspective was reasonably favourable and that the plaintiff came across as a fairly happy, jovial, positive, optimistic person.
Investigations
125 An ultrasound of the left shoulder carried out on 28 August 2007 showed a full thickness tear of the supraspinatus tendon associated with bursal impingement and subdeltoid bursitis.
126 A CT scan of the plaintiff’s cervical spine was organised by Dr Mason on 19 September 2007. It was reported there was no disc protrusion or herniation that could be seen. Cervical spondylotic change was seen at the levels C2-C7. There was no bony encroachment upon the exit foramina that could be seen.
127 An ultrasound-guided injection of the left shoulder was carried out by Dr Mason on 28 September 2007 without incident.
128 A left shoulder ultrasound was carried out on 21 November 2007. It was reported there was subdeltoid bursitis and that the plaintiff may be assisted by an ultrasound-guided injection into the subdeltoid bursa with cortisone and Marcain. No fluid was seen within the biceps sheath.
129 The rotator cuff demonstrated no loss of contour to suggest a significant full thickness tear. However, there was a fairly prominent large area of low attenuation close to the greater tuberosity within the supraspinatus tendon with the appearances in keeping with a partial thickness tear measuring 12 x 9 millimetres at that level.
130 It was reported that this had been seen previously and appeared to be essentially unaltered. The deltoid bursa was thickened and demonstrated bunching on the functional studies. The remainder rotator cuff appeared normal.
131 There was another ultrasound-guided left shoulder injection on 14 December 2007.
132 Dr Mason organised a series of investigations in April 2009, including an x-ray of the cervical and dorsal spines and an ultrasound of the left shoulder.
133 In the left shoulder ultrasound no fluid within the joint could be seen. The rotator cuff showed degenerative hypoechoic change involving the greater tuberosity in keeping with a partial thickness tear at that level. The remainder of the rotator cuff appeared normal and the thickening of the subdeltoid was seen, which showed bursal bunching at 60 degrees.
134 An x-ray of the left shoulder taken on 9 September 2009 showed degenerative changes of the acromioclavicular joint, loss of joint space and minor osteophytic lipping. There was bony sclerosis involving the greater tuberosity noted, possibly on the basis of insertional tendinopathy.
The Plaintiff’s Expert Evidence
135 Mr Lee, director of Russell S Lee Pty Ltd, forensic electrical engineer, provided a report dated 19 November 2010, having attended the premises and earlier having spoken to Mr Lackner.
136 Mr Lee considered if the premises had been equipped with a Residual Current Device (“RCD”), the injury the plaintiff suffered would have been markedly reduced as the current would have been limited to 30 milli-amperes for less than 30 milli-seconds. As it was, the plaintiff was more likely than not to have suffered about 200 milli-amperes for about one second.
137 In terms of the plaintiff’s electric shock injuries, Mr Lee noted an entry wound was reported, but no exit wounds. He noted the plaintiff reported the wire stuck to his thumb and the plaintiff had to pull it off.
138 Mr Lee commented that electrical wounds are related to the current which passes, and more particularly, to the density of that current. Given that the space under the floor of the premises was restricted and the plaintiff was lying almost full length, the current leaving his body did so over a large contact area with the ground, and thus the current density was very low. On the other hand, the entry contact with the plaintiff’s thumb presented a significantly higher current density as his injuries showed.
139 Mr Lee attended the premises on 12 August 2010 and inspected the underfloor; more particularly, the wiring asserted to have been involved in the incident.
140 Following discussions with Mr Lackner, Mr Lee was able to identify the subject wiring. According to Mr Lackner, the wire was hanging loose under the floor and was cut squarely and unstripped, without any termination or end insulation. It appeared to him to be a forgotten cable. He terminated the wiring and enclosed it in a plastic terminal box fixed to the floor bearer.
141 Mr Lackner also advised Mr Lee that he had been under the dwelling about eighteen months to two years before the incident, but worked under the lounge room at the front of the building. He had not gone as far back as the live wire, which was under the bathroom.
142 According to Mr Lackner, the original switchboard had been typical for the age of the premises, with re-wireable type porcelain fuse carriers, but not an RCD. He returned after the incident and replaced the main switchboard with a circuit breaker type equipped with an RCD, new earth stake conforming to current regulations.
143 In his report, Mr Lee referred to s.43 of the ESA, which provides:
“(2) The occupier of any premises in which there is any unsafe
electrical equipment must—
(a) cause the electrical equipment to be removed from the premises or to be made safe; or (b) in the case of electrical equipment forming part of an electrical installation, notify the owner of the premises of the unsafe electrical installation. Penalty: 40 penalty units.”
144 Mr Lee commented that had repair work been done at the time the plaintiff advised the defendant of the outdated nature of the switchboard, a new main switchboard with an RCD would probably have been installed and the incident would not have had this unfortunate effect.
145 A number of photographs accompanied Mr Lee’s report:
(a) Photograph 1 showed the street frontage of the premises with the main switchboard around the left corner. (b) Photograph 2 showed the meter cupboard and the main switchboard cupboard below, with the underfloor access hatch in the bottom of the photograph below the cupboard. (c) Photograph 3 showed the view from the access hatch under the floor of the premises. (d) Photograph 4 showed the view looking east under the lounge room floor towards the kitchen, which Mr Lee thought was the direction the plaintiff must have travelled. (e) Photograph 5 showed the view towards the east and beyond the kitchen with the new terminal box that Mr Lackner had installed. (f) Photograph 6 showed a closer view of the terminal box 2.5mm (squared) conductor cable connected to that box.
146 Mr Lee noted that the wire came from the far side of the bearer and had been terminated on the nearer side because it was easier to do so. The ground clearance was about 350 millimetres and the area of the pipes was tight. There was a piece of stripped cable sheet on the ground, which was probably left there by Mr Lackner when he made the termination.
147 Mr Lee concluded the subject wire had the appearance of being in place for many years and its dusty condition was typical of underfloor surfaces. The subject wiring cable was typical of that used from the early 1960s.
148 It appeared to Mr Lee that the description given by Mr Lackner and the appearance of the wire both pointed to a condition where the wiring was either installed a long while ago and was forgotten, or was cut off during undefined renovations and forgotten.
149 In either case, the wiring was allowed to drop through from the floor above. The far end was either connected or left unconnected at the switchboard. It surprised Mr Lee that people installing the central heating duct would not have encountered the wire.
150 Mr Lee noted that the requirement for RCDs in domestic dwellings did not come in until the mid 1980s. The main switchboard at the premises, being of a rewireable fuse type, could have been protected by an RCD by the simple expedience of placing such a device in a separate housing beside the switchboard, an approach often seen in older dwellings.
151 However, unless the owner of a premises requested the installation of such a device or some electrical alterations were made to the electrical installation, there were no mandatory requirements to update the protection arrangements.
152 The regulations and wiring rules change annually and the regulatory view is that it would be unreasonable to update all older installations. The newer requirements only come into play when the switchboard is modernised or major works are undertaken.
153 Mr Lee concluded the obligations of the owner/occupier are expressed in s.43 where the operative words are “know or should reasonably be expected to know is unsafe”. He considered that for an unskilled person, reliance on an electrical tradesman or some significant event becomes an issue.
154 In examination-in-chief, Mr Lee described the wire as insulation not cut back, with no termination or end insulation, which appeared to be a forgotten circuit. Mr Lackner told him that after the incident he had put it in a plastic terminal box known as a junction box.
155 Mr Lee explained that an RCD was intended to protect against inadvertent contact with a live wire either by a person or by some other medium, like anything that conducts electricity, and to operate and disconnect the supply.
156 Mr Lee understood that within days of the incident an RCD was installed, replacing the old fuse box.
157 Mr Lee estimated the distance under the house based on his own size, and the difficulty obtaining access.
158 Mr Lee explained that when work is carried out on the main switchboard in a new building or extensive alterations are carried out in an existing dwelling, there is a requirement to install an RCD, the cost of which would be about $250. The installation of an RCD has been a requirement in new houses since 1985 or 1986. Mr Lee estimated that still about fifty per cent of residential properties have the old style wire fuses.
159 From the description given to him by Mr Lackner, Mr Lee understood the wire had been clean cut with a pair of pliers. Further, in examination-in-chief, when asked, if there had been an RCD, what would have happened if there was contact? Mr Lee explained a person would typically receive spasm and a shock necessarily because current must pass in order to operate any protective device. The RCD would have cut off the current virtually instantaneously with the setting at 30/1000s of a second. Once it had cut off, the spasm of the plaintiff’s hand would cease immediately.
160 In cross-examination, Mr Lee agreed that if an RCD had been installed there would still be a shock when contact was made and he would expect there would be an involuntary reaction/withdrawal, explaining however, that each person’s response was different. At one end of the scale there was no manifestation of any sort of injury at all, and then there was the other end of the scale. For most shocks, even with an RCD, there is no injury.
161 Mr Lee explained the length of exposure has a relationship with the extent of injury.
162 In Mr Lee’s view, thrashing around implied the plaintiff had a firm grip and he was holding onto the wire. If there is sufficient current flow, the wire can stick, and he spoke from personal experience in that regard. Thrashing implied a longer period of contact and suggested to him there was an involuntary grasp, which implied a fairly strong sort of contact. If there was grasping, there was a problem and that could lead to a significant burn mark on the entry point, and that is what would be expected in that type of situation. If the plaintiff had simply rolled away and broken contact, Mr Lackner agreed there may well be a very limited period of time involved and very little, if any, visible mark on the plaintiff’s thumb – impact very similar to the impact if in fact an RCD was in place.
163 Mr Lee disagreed with Mr Collins’ view as to the extent of the plaintiff’s injury, but said it was a statistical issue.
164 Mr Lee explained that it was always of benefit to have an RCD, but then noted withdrawing from the wire takes a bit of time. He thought an RCD would generally operate quicker than a person could react. Mr Lee agreed, after the plaintiff’s thumb came in contact with the live wire and his hand spasmed around it, that was going to happen whether there was an RCD or not, but then said it was a possibility that an RCD would react before the hand had a full grip. Mr Lee agreed that if the plaintiff did not need to pull the wire off with his right hand, and that it just fell off his hand, that would be indicative of transient contact.
165 Mr Lee was not familiar with the plaintiff’s experience of his heart thumping after the contact with the wire. His experience from talking to people who have had an RCD controlled hit was of no evidence of a lingering effect. He explained the body had a tendency to spasm and grip, with a clutching reflex, if there was contact on the upper limbs, and it depended on how the wire was positioned as to whether it would require some force to remove it or not. It was only when contact was lost that the grip would relax.
Lay Evidence
166 Mr Patterson is a handyman and friend of the plaintiff. For fifteen years Mr Patterson has been doing carpentry and other general work. His clients rely on him to advise as to various tradesmen and he suggests qualified people.
167 Mr Patterson has known the plaintiff as a plumber from about 1984 when he first did some work for him. He thought the plaintiff was a fairly good plumber. He often said to others that the plaintiff is the one who fixes up other plumbers’ mistakes.
168 Mr Patterson was aware the plaintiff was involved in an electrical incident in late 2006. Since then, Mr Patterson has referred clients on appropriate occasions, but the plaintiff no longer does roofing jobs.
169 Mr Patterson sometimes works with the plaintiff on jobs and since the incident has noticed the plaintiff has problems carrying on his right side. He did not believe the plaintiff was working or able to work to his full uninjured capacity and Mr Patterson is no longer able to refer large work to him. When he has done so, the plaintiff has had to knock it back, or the customer has advised Mr Patterson that the plaintiff’s work is unsatisfactory.
170 Mr Patterson continues to refer smaller jobs, such as taps, small repairs and drainage type work to the plaintiff.
171 Prior to the incident, Mr Patterson knew the plaintiff had moved a house and was also building a granny flat. At that time, the plaintiff worked at an amazing pace and Mr Patterson thought it was like he had ADD he worked so fast and it was hard to keep up with him. Since the incident, he believed the plaintiff had slowed down considerably.
172 In cross-examination, Mr Patterson said the plaintiff had never knocked back any work prior to the incident and was working at full capacity.
The Defendant’s Evidence
173 The defendant and his family have lived in the premises for about forty three years. For at least ten years, plumbing work at the premises, such as a blocked drain or something similar that needed fixing has been done by the plaintiff.
174 There was some work done at the premises in 2004 on the guttering.
175 The defendant could not recall having a conversation on that occasion when the plaintiff told him the meter box was out of date – “the primary matter” was that they were “getting the roof fixed”.
176 If the plaintiff suggested to him at that time that there was a safety issue in respect of the switchboard, the first defendant would absolutely have taken action:
“His viewpoint was electricity quickly turns into a fire in your house and so if there is an issue, whether it is plumbing or whether it is electrical, it would have been done.”
177 The defendant did not stand there and watch whilst the plaintiff did the spouting work and he confirmed he had very little recollection of that episode.
178 In further re-examination, the defendant said if he believed there was a safety switch issue in 2004, he would have acted by going to have a look at the switchboard and asking what was wrong with it.
179 In the years leading up to the incident, the defendant had never had any trouble at all with the switchboard and it has never been an issue whatsoever.
180 From time to time as an electrician, Mr Lackner did electrical work at the premises. Neither Mr Lackner nor anyone else had said anything about the switchboard needing updating prior to the said date.
181 The defendant could not recall there was ever any work done in the bathroom before the incident. The night before the hearing he checked the premises and saw all the power points were exactly as they had been in the last forty years in the hallway and in the bathroom.
182 In response to a suggestion that his daughter Anna Marie had said they were waiting for an electrician, the defendant said he could not recall that somebody was required to come to work on the switchboard. They would not have waited eighteen months to arrange for somebody as “if you had something like that and it needed replacing, you would replace it”. In fact the switchboard was changed very soon after the incident.
183 Following the incident, the defendant was told by his daughter that the plaintiff had been in the house and said he had been electrocuted and she also said something about a spare wire. The defendant said straight away:
“Ring the electrician to come and have a look because we cannot have a spare wire loose in the house, especially if it’s affected somebody, it is even ten times worse.”
184 Mr Lackner was asked to fix it and basically he said the switchboard needed to be changed.
185 Prior to the incident date, the defendant had no inkling that there was an unprotected wire under the house. No tradesman in the past had said anything to him about a lack of safety under the house.
186 In cross-examination, the defendant thought Mr Lackner explained the switchboard needed to be changed after he had a look at the wiring because someone had been electrocuted. The defendant was not exactly sure of the words used by Mr Lackner
187 From time to time the defendant had had to repair a blown fuse and he would switch the master switch off manually and replace the fuse and then put it back in and then switch it back onto manual master switch. At that stage, he was not aware of what a safety switch was, but he had to say he knew what it did. He did not realise he needed a safety switch because there was a manual switch.
188 Before the incident, there had not been an overall check of the electrical system at the premises. A couple of months before the incident, a dimmer switch had been repaired on the lights in the lounge room.
189 The defendant agreed that after the incident, his daughter reported to him the plaintiff had been electrocuted or suffered an electric shock. It had absolutely been a distressing incident.
190 The defendant did not contact the plaintiff to see how he was because his daughter rang the plaintiff, who told her that he had gone to the Hospital or driven himself to the Hospital.
191 The defendant’s daughter rang up to see how the plaintiff was. The defendant denied he did not ring the plaintiff himself because he felt embarrassed that his electrical system had deteriorated and that was the cause of the plaintiff’s problems.
The Defendant’s Expert Evidence
192 Mr Collins, principal and director of Power-Lec Engineering Ltd, provided a report dated 12 January 2011.
193 Mr Collins holds a Diploma of Electrical Engineering, Graduate Diploma of Business, Graduate Diploma of Computer Control and Communications and a Graduate Diploma in Building Fire Safety and Risk Engineering. He has in excess of twenty four years of accident equipment failure and fire investigation experience – qualifications similar to those held by Mr Lee.
194 In preparing his report, Mr Collins relied upon AS 3859-1991 – ‘Effects of current passing through the human body’, and ASNZS 60479.1 - 2010 – ‘Effects of current on human beings and livestock’.
195 Mr Collins inspected Mr Lee’s physical layout and electrical configuration and adopted Mr Lee’s report in relation to the layout and condition of the premises. Mr Collins also had available to him the plaintiff’s Answers to Interrogatories.
196 Mr Collins concluded the plaintiff received an electric shock while working beneath the premises. He found the cable was left in an unsafe condition and should have been made safe by the electrician who last worked on it. Mr Collins thought it was highly unlikely that locating and identifying the unsafe cable would ever occur, especially under day-to-day conditions.
197 The cable was most probably connected to supply and was energised at 240 volts. The plaintiff made contact with the live conductor with his left thumb.
198 Mr Collins concluded electrical current passed through the plaintiff’s body and discharged to the general mass of the earth through contact points, through a percentage of the plaintiff’s prostrated body.
199 The maximum area of contact with the live conductor was limited by the cross section area of the conductor. That was confirmed by Mr Lee to be 2.5 mms squared, which was the size of the conductors used in house power cabling.
200 Mr Collins concluded that the duration of contact the plaintiff made with the cable was not precise, but mostly probably was only a low number of seconds at the most.
201 The underfloor of the house was most probably dry, as evidenced by the comments made by Mr Lee, and was consistent with dust on the cables.
202 Mr Collins dismissed any allegation the defendant failed to maintain an electrically safe premises. He considered that even if the property was fitted with a new switchboard, the wire would remain unsafe - the fault was historic.
203 Mr Collins thought there was a rather tenuous connection between the live conductor under the floor and the electrical safety of the installation, with Mr Lee having stated if a new switchboard had been fitted, then a safety switch would have been installed, and that would have made the electrical installation safe.
204 In Mr Collins’ view, if the plaintiff did tell the defendant the house was electrically unsafe, then it was the plaintiff who should have been proactive. With the switchboard unmodified, the plaintiff was on notice in relation to the safety of the premises. Realising no electrical improvements had been made, he should have isolated the electrical installation of the house at the switchboard and under that arrangement, the incident would not have occurred.
205 In examination-in-chief, Mr Collins explained that the effect of exposure to a live wire on a person depended on a number of factors and a person may have a different experience of electric shock.
206 Mr Collins explained the plaintiff was touching the cable with one point of contact, namely, his thumb, and the other point of contact, which was the return path, was the ground on which he was lying and therefore there was adequate area for contact with the ground.
207 There were factors then such as the nature of the ground and whether or not there was rubbish on the floor so one ended up with a combined resistance through the person which allowed him, with the cable being energised at 240 volts, to determine what the current would be. He did not know what the resistance was; however, the standards say typically this will be the amount, and that could be worked upon as the estimate.
208 When asked how someone reacts to an electric shock and the fact the plaintiff was able to crawl from under the house, Mr Collins explained it depended on who the person was who suffered the electric shock. Electricians who were used to that experience did not consider it to be a big deal, but for someone not in the industry who for the first time has an electric shock, they will see it as a major event in their life.
209 In cross-examination, Mr Collins confirmed when he described in his report that the plaintiff suffered the most minor of injuries, he was talking about the shock itself.
210 He explained that the contraction of the muscle on contact with the electric wire caused the clasping. When a person contacts a live conductor, their thoughts are very much focussed on removing themselves from that position. It was only the thumb that was connected. He expected it would be a natural reaction to try and break the current that you would thrash around to try and get loose.
211 Mr Collins was not qualified to comment whether the injury to the plaintiff’s shoulder was caused by the thrashing around rather than by the shock itself. He agreed it was indeed possible that consequential injury could be more severe.
212 If there had been a safety switch, the plaintiff’s hand could have been released from its spasm. If there was a functioning RCD and the plaintiff was contacting the ground and the active wire, he would have said that was an unpleasant experience, but the power had gone. He agreed installing an RCD would cost about $250 for parts and labour.
213 If there was a “dodgy” circuit or appliance and no RCD, Mr Collins thought that was a potential problem but not necessarily a problem. He agreed that an RCD would help a great deal in establishing and in improving the safety of the premises.
The Defendant’s Lay Evidence
214 Mr Lackner has been an A Grade Electrician since 1978. Over the years he has done work for the defendant at his business address and at the premises.
215 Prior to the incident, when he performed electrical work at the premises, he did not notice anything that would make him think that he would need to tell the defendant there was a problem with the installation.
216 There was no regulation stating the work he carried out at the property would require him to install an RCD or circuit breakers.
217 If a member of the defendant’s family had said there was a safety issue with the metre box and asked him to come and look at it, he would have responded quickly.
218 In November 2006, the defendant’s daughter contacted him and advised him someone had had an electric shock at the premises. The following day Mr Lackner attended the premises to have a look.
219 Mr Lackner identified Photograph 6 as the area under the floor of the premises, just beyond the kitchen area. Having first isolated the power, Mr Lackner inspected the area under the floor and then located the wire that was not terminated. He identified the location of the wire at that time as where it was shown on the beam on the photograph. It was not his recollection that the wire was dangling on the ground on the other side of the beam. He installed the junction box in the crawl space.
220 Mr Lackner thought that the fact a dimmer switch was not working was not an indication that the general electrical system at the premises was dilapidated.
221 In cross-examination, Mr Lackner said he had a feeling he may have fitted safety switches at the defendant’s office.
222 Mr Lackner did not agree with the description of the plaintiff having suffered a serious electric shock.
223 Mr Lackner did not think he had worked in the bathroom or the hallway near the bathroom prior to the incident. He may have changed a power point over in the laundry but he could not remember.
224 Mr Lackner does lots of jobs and goes to lots of houses, so he could not remember exactly everything he installs.
225 Mr Lackner could not remember when he discussed the location of the wire with the plaintiff’s legal representatives.
226 The wire “may be hanging off a little bit because that is the way the cable behaves”. He disagreed with the proposition that it would have been easier to do the work with the wire closer to the entrance as once the power is isolated you could simply flip the wire over the bearer. It did not matter to him on what side the junction box was located.
227 Mr Lackner agreed that the wire close to the terminal box appeared to be significantly whiter. He would have handled it, but he would not have cleaned it.
228 Anna Marie Tesselaar, the defendant’s daughter, called the plaintiff to do plumbing work in December 2006, because the cold tap was not working in the bath.
229 Ms Tesselaar was at the premises when the plaintiff was working there. He came into the kitchen and said, “Did you hear that?” She said, “No, what happened?” He said, “I hit my head and I got electrocuted”.
230 She asked if he would like her to call an ambulance to take him to hospital. He declined her offer and the plaintiff went to his car and called his doctor on his mobile. She then asked the plaintiff what the doctor said and he told her that he said for him to go to hospital and get tested.
231 Ms Tesselaar could not recall whether the plaintiff used the word “electrocuted”, but she understood him to have had an electric shock. He told her he grabbed hold of the live wire on his thumb and that he rolled out of it so he was not stuck on the wire. She denied she had said anything to the plaintiff like they had been waiting eighteen months for an electrician and that earlier someone had done some work on the bathroom. There was no work done in the bathroom or the hallway in the few months leading up to the incident.
232 Ms Tesselaar rang the plaintiff a couple of days after the incident to see if he was okay and to find out what the doctor said. The plaintiff told her he had to have an EKG just to check his heart rhythms, and that so far he was okay.
233 In cross-examination, she confirmed there had been no electrical work at all done on the premises in the few months before the incident. She could not remember the last work done before the incident. She could not recall work on a dimmer switch a few months before. She could not recall a laundry power point being put in or replaced. The laundry and the bathroom did not have a common wall; there was a toilet in between.
234 Ms Tesselaar did not know whether the plaintiff was moving vigorously under the house at the time of the incident as she was not there. He did not show her his chest. It might have happened, but she could not remember. She agreed possibly there were things she did not remember about the conversation when the plaintiff came from under the house and agreed it was fair to say there were gaps in her recollection of the conversation.
235 Ms Tesselaar agreed, of course the plaintiff was very upset at the time and it was quite obvious he was shaken and had had a very nasty incident.
236 She thought there was a safety switch at the office, because if the power goes out, they have to check if the safety switches had gone off. She agreed it was a useful thing to have as it cut off the power and no one would get hurt.
The Defendant’s Medical Evidence
237 The Emergency Department at the Hospital wrote to the plaintiff’s general practitioner, Dr Ubhi, on 16 December 2006 advising that that the plaintiff was admitted at 14.35 the preceding day and was monitored overnight and had no issues on review that morning and was discharged.
238 It was noted the presenting problem was “electrocuted entry point left thumb, chest pain, pain to left arm radiating to neck”. The plaintiff presented following an electrocution, he was at work when he accidentally grasped a live wire and was electrocuted. He experienced some ache in the left arm but no other symptoms.
239 On examination, the progress notes set out that the plaintiff’s left arm movement was normal. It was noted that he was electrocuted whilst working under a house, “pain in hand resolved, slight headache”.
240 The nursing assessment note at 2.35 pm on 15 December 2006 set out:
“Nil chest pain, pain to his left arm radiating to the neck.”
241 The Emergency Department Nurse Management chart set out the plaintiff had a past history of depression and he was taking medication for depression.
242 The progress notes on 16 December 2006 at 7.30 am set out that the plaintiff was handed over to the AM Nursing:
“He had equal limb strength. There was no chest pain, abdominal pain or headache. The patient stated he was feeling well and comfortable and eager for discharge.”
243 Progress notes, the time of which is unclear, set out:
“The plaintiff was under a house and handled a live wire with his left thumb. He was in contact for a few seconds. He had some abrasions from crawling and rolling under the house to get away from the wire. He stated he had slight left arm stiffness and he called his GP.”
244 Mr Dalziel wrote to Dr Mason on 12 May 2008, a week after surgery. He advised that at the time of surgery the plaintiff was found to have a bursal sided partial thickness tear of the rotator cuff and had a subacromial decompression performed along with debridement of the rotator cuff tissue. On review, the plaintiff was achieving a satisfactory improvement in the range of movement and little complaint of pain.
245 Mr Hugh Weaver, orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 12 January 2011.
246 The plaintiff told Mr Weaver of the incident and that he believed the jerking movement to free himself was probably responsible for the subsequent development of his shoulder problem.
247 The plaintiff told Mr Weaver he was aware from the outset of an ache in his left shoulder and neck and he subsequently saw a couple of different doctors. An ultrasound was performed and the plaintiff was advised he had sustained a ligament tear. Arthroscopic surgery was performed by Mr Dalziel in 2008.
248 The plaintiff told Mr Weaver that his continued management had merely comprised the use of strong analgesics which he was obliged to take on a more or less day-to-day basis.
249 The plaintiff told Mr Weaver he was away from work for two to three weeks over succeeding years and in part, as a consequence of his treatment, he had lost additional varying periods of time from employment. Because of his present symptoms, he was restricted to working for only two to three days a week and he restricted himself substantially in his activity, now not doing any roof work and only a limited amount of under floor work.
250 The plaintiff told Mr Weaver he experienced discomfort and difficulty undertaking typical abduction in flexion movements of the left upper limb at the shoulder. He was comfortable if sitting quietly but was more aware of discomfort at night, particularly if he had been working during the preceding day. He was unable to lie on his left side comfortably at night and he could not do any digging at work.
251 The plaintiff had been able to persevere with his hobbies of fishing and camping. He also persevered with gardening but modified that because of his ongoing shoulder problem.
252 On examination, there was no evidence of muscle wasting. The plaintiff’s neck was generally a bit stiff with some restriction of movement.
253 There was a completely full range of right shoulder movements. On the left there was a somewhat asymmetrical loss of movement, with Mr Weaver noting the plaintiff exhibited no less than 160 degrees of forward flexion but abduction was limited to no more than 90 degrees. There was fairly full rotatory movement present in either direction but the plaintiff then exhibited limitations of both extension and cross-body abduction.
254 Mr Weaver’s overall assessment was that the plaintiff gave clear evidence exhibiting signs of an ongoing left shoulder problem and that that reflected continuing effects of the employment incident.
255 Mr Weaver also observed the plaintiff presented with evidence of a slightly stiff cervical spine, a feature which in large part was consistent just with his age, but by the same token, Mr Weaver thought the plaintiff could possibly argue the effects of the employment incident were responsible for contributing, at least to some extent, to some ongoing impairment of function affecting his neck.
256 Mr Weaver considered the left shoulder pathology represented the plaintiff’s main continuing problem, but noted there was a minor element of initial impairment being caused to him from partial loss of function within the cervical region.
257 Mr Weaver thought that the plaintiff’s complaints overall were certainly in line with the character of the original injury and that the plaintiff was left with some persisting partial impairment of the left shoulder confirmed on clinical examination.
258 Mr Weaver thought it was appropriate the plaintiff had essentially discontinued formal treatment and he had been encouraged to try to continue to use his left upper limb as appropriately as possible.
259 Similarly, Mr Weaver accepted the plaintiff was probably sensible in imposing restrictions on his employment, given his left shoulder demonstrated an element of residual impairment.
260 Mr Weaver thought there was no particular reason why the plaintiff could not undertake many elements of his former work on a part time basis. He considered that the more hours the plaintiff worked, the more likely he would experience some ongoing pain symptoms and, on that basis, the plaintiff was justified in restricting his working activities to no more than two or three days a week, a situation which Mr Weaver thought was going to persist for the remaining period of the plaintiff’s employment.
The Duty Imposed by PART IIA of the Wrongs Act
261 Section 14B of the Wrongs Act provides:
“(3)
An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
(4)
Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged consideration shall be given to—
(a) the gravity and likelihood of the probable injury; (b) the circumstances of the entry onto the premises; (c) the nature of the premises; (d)
the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises;
(e) the age of the person entering the premises; (f)
the ability of the person entering the premises to appreciate the danger;
(fa)
whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;
(fb) whether the person entering the premises is engaged in an
illegal activity;(g)
the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
(5)
Nothing in this section affects any obligation to which an occupier of premises is subject by reason of any other Act or any statutory rule or any contract.”
262 In this case, the issue is what is the duty owed by the defendant/occupier to the plaintiff who entered the premises as a tradesman for reward to undertake plumbing works?
263 As the Court of Appeal in Mountain Cattlemen’s Associate of Victoria Inc v Barron[1] demonstrated, each of the factors set out in paragraphs (a) - (g) must be considered in determining whether the occupier has discharged its duty.
[1] [1998] 3 VR 302
264 Some guidance is to be obtained from cases relating to the contracting of service men in cases decided under the common law.
265 The High Court has made clear that where an independent contractor carrying on a particular trade is engaged by an occupier to work on his premises, the occupier is not under a duty to give warning of a defect in the premises if tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind.[2]
[2] See Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at [30] per Brennan and Dawson JJ. See also Gaskin v Ollerenshaw [2010] NSWSC 791 at [201]-[207]
266 The exception to the above rule may be where the occupier fails to warn of an unusual danger of his own making not discoverable by a skilled worker.[3] In Papatonakis,[4] a Telecom linesman was not informed by the occupier that it had altered the line which subsequently injured him, and the majority Court found the occupier was in breach of its duty of care.
[3] Professor John Fleming, ‘Law of Torts’ (9th ed, 1998) as cited in Bhambra v Roet [2003] NSWCA 393 at [35]
[4] Papatonakis v Australian Telecommunications Commission (supra)
267 Apart from not informing the independent contractor of any unusual dangers created by the occupier itself, the courts have declined imposing any tortious duty on occupiers to inspect their premises for the purpose of discovering unknown and unsuspected defects.[5]
[5] Stannus v Graham (1994) Aust Tort Rep 81-293 per Handley JA
Was there a Contractual Warranty and, if so, What were the Terms of the Warranty?
268 It was not in issue that the plaintiff entered the premises pursuant to a contract with the defendant.
269 For the purpose of this aspect of the plaintiff’s case, I accept the plaintiff is entitled to argue:
(a) that s.14(B)(5) permits a contractual entrant to rely upon breach of a term of a contract; (b) in certain circumstances, the occupier may warrant to a contractual entrant that the premises are as safe as reasonable skill and care can make them.[6] [6] See Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23 at 38 and Mountain Cattlemen’s Associate of Victoria Inc v Barron (supra) at 305-314
270 The plaintiff’s case relied upon Watson v George[7] in which Fullagar J cited with approval the following passage from Maclenan v Segar:[8]
[7] (1953) 89 CLR 409
[8] (1917) 2 KB 325
“Where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it provides to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of any one can make them.”[9]
[9] Watson v George (supra) at 424 per Fullagar J
(emphasis supplied)
Is the Plaintiff a ‘Watson v George’ Contractual Entrant?
271 It is clear from what was said in Watson and in Maclenan that the higher standard of care is to apply where the plaintiff has paid to enter the premises. In both cases, the plaintiff was either killed or seriously injured in lodgings owned by the defendants at which they had paid to stay.
272 On those facts, the plaintiffs were entitled to rely upon the implied warranty as set out in Watson v George.
273 It does not appear that the reverse position applies; that is, that the implied warranty also exists where an occupier has paid or has promised to pay the plaintiff to enter the premises pursuant to a contract to carry out specific work, as is the case here.
274 Although Jordan CJ, in Key v Commissioner for Railways,[10] said the higher duty may apply to invitees “whom the occupier employs to do work for him on the premises, and persons who pay him for admission to premises,”[11] this was said in obiter and his Honour later referred only to the paying entrant as one to whom the higher standard applied.[12]
[10] (1941) 41 SR (NSW) 60
[11] at 65-66
[12] at 66
275 As the Court held in Calin v The Greater Union Organisation Pty Ltd:[13]
[13] [1991] HCA 23 at 38
“… In view of our ultimate conclusion that the trial judge's direction to the jury was adequate to cover the respondent's duty under any implied contractual term, we are prepared to assume that, notwithstanding the applicability of the ordinary duty of care of the law of negligence, a contractual term to the effect suggested on behalf of the appellant can be implied from the sale and purchase of the cinema tickets.”
276 The position was made clear by the New South Wales Court of Appeal in Ordukaya v Hicks,[14] There, the plaintiff, a self-employed courier, injured himself when the top paver step gave way as he removed a refrigerator from residential premises occupied by the defendant.
[14] [2000] NSWCA 180
277 Sheller JA, with Mason P and Meagher JA agreeing, said:
“The plaintiff submitted that Judge Cooper did not apply the correct test. The plaintiff relied upon what was said by Fullagar J in Watson v George at 424, by Mason CJ, Deane, Toohey and McHugh JJ in Calin v The Greater Union Organisation Pty Limited [1991] HCA 23; (1991) 173 CLR 33 at 38 and by Brennan CJ in Northern Sandblasting Pty Limited at 338-9 to support the proposition that the duty owed by the defendant in this case was one to see that the premises were as safe for the contemplated purpose of the entry by the plaintiff as reasonable care and skill on the part of anyone could make them. It was said that, in the present case, that duty applied because the plaintiff entered the premises ‘under contract’. But with due respect, as appears from the judgment of Brennan CJ in Northern Sandblasting at 337, those cases and the duty they describe are cases concerned with persons who have contracted for their entry onto the occupied premises or those whose entry has been paid for. The typical example would be Miss Calin who bought a ticket to attend a cinema and was injured when she entered the darkened auditorium. Further discussion is to be found in some of the judgments in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 445, 460, 478 and 486. Nothing, it seems to me, detracts from the correctness of what Handley JA said in the passage in Stannus v Graham to which Judge Cooper referred.”[15]
[15] Ordukaya v Hicks (supra) at [43] per Sheller JA
(my emphasis)
278 In my view therefore, the plaintiff does not fall within the “contractual entrant” category as prescribed in Watson v George.
279 It follows, as Mountain Cattlemen demonstrates,[16] that the contractual warranty in the present case was to the effect that the defendant was required to take reasonable care for the safety of the plaintiff whilst he was on the premises, and a term thereof was to take reasonable care for the safety of the plaintiff. In this regard, there is no difference between the duty under the Wrongs Act and in contract.
[16] See Mountain Cattlemen’s Associate of Victoria Inc v Barron (supra) at 305 and Calin v The Greater Union Organisation Pty Ltd (supra) at 40
Breach of the Contractual Warranty
280 The issue then (whether under the Wrongs Act or contractual warranty) is whether the defendant failed to take reasonable care for the safety of the plaintiff.
281 In determining whether the duty of care has been discharged in the present case, the question to be asked is whether the defendant has taken such care that is reasonable in all the circumstances to see that the plaintiff will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises, taking into account the factors set out in Section 14(B)(4)(a)-(g).
282 The plaintiff entered domestic premises as a tradesman to perform plumbing services (Section 14(B)(4)(b)).
283 I am not satisfied that the defendant knew or ought to have known of the danger of the exposed wire. I find the situation had persisted for an indefinite period of time and had existed without any problem which would have alerted the defendant to any danger associated with the plaintiff working under the premises.
284 I am satisfied that the defendant had no personal knowledge of the exposed wire nor had he been told of any safety issue by any tradesman who had worked under the premises.
285 I do not accept that whilst working at the premises in 2004, the plaintiff told the defendant that the meter box was out of date and “it really should have a safety switch and be looked at”. This conversation was denied by the defendant, whose evidence I accept on this issue.
286 My assessment of the defendant is that if that conversation had taken place as alleged, he would have acted by having a look at the switchboard and asking the plaintiff what was wrong with it.
287 In the absence of such knowledge, the failure to install an RCD cannot constitute a failure to take reasonable care. Further, the installation of an RCD in an existing property was not a statutory requirement save for a new property or a major renovation of an existing electrical system. Before the incident, there had been no prior problems with the electrical installation and Mr Lackner had not suggested to the defendant that this course should be followed.
288 The premises is a typical domestic house and there was no evidence of any faulty or dangerous wiring being apparent prior to the incident (Section 14(B)(4)(c)).
289 In the years leading up to the incident, there had been no overall check of the electrical system at the premises. The only electrical work undertaken was the repair of a dimmer light inside the house a couple of months prior to the incident. There was no evidence of the last time someone had worked under the floor of the premises.
290 I do not accept that Ms Tesselaar told the plaintiff on the said date that she had been waiting eighteen months for an electrician to upgrade the power board.
291 Ms Tesselaar, whom I found to be a credible witness, denied this conversation took place and the defendant denied any knowledge of such an arrangement.
292 I do not accept the defendant would have waited for eighteen months for an electrician to carry out work of this nature, if alerted to any defect. Further, the only electrician who carried out work at the premises was Mr Lackner, and he knew nothing of this issue.
293 The plaintiff was an experienced plumber. Consistent with industry practice, never in his career as a plumber when required to work under a building had the plaintiff asked an owner whether there were any dangers from an electrical viewpoint under that building. Importantly, the plaintiff did not have any expectation the owner would have made such an inspection prior to the plaintiff working in that area (Section 14(B)(4)(b)).
294 Mr Lackner, when carrying out electrical work at the premises before the said date, did not notice anything wrong with the quality of the electrical supply system at the premises.
295 Mr Collins thought it highly unlikely that locating and identifying the unsafe cable would occur, especially under day-to-day conditions.
296 I conclude therefore that the defendant had no knowledge, nor could he reasonably be expected to have known of the presence of the unsafe wire on the premises.
297 Whilst I accept that the installation of an RCD would not have been overly expensive and may have limited the amount of the plaintiff’s exposure to the live wire, I do not accept that the defendant was in breach of his duty to the plaintiff by failing to install such a device (see Section 14B(4)(g)).
298 In these circumstances, I am not satisfied that the defendant has acted with any lack of reasonable care, and the claim pursuant to Section 14B(3) is therefore dismissed.
299 In my view, Section 43(2) of the ESA does not add anything to a consideration of a breach of Section 14(B) other than to illustrate that care has to be taken in relation to electrical installations.
The Claim of Statutory Breach Based on the Electricity Safety Act (“ESA”)
300 The plaintiff also alleges that the defendant has breached s.43(2) of the ESA, in that he failed to cause unsafe electrical equipment to be removed from the premises.
301 Section 43 provides as follows:
“43 Safety of electrical installations
(1)
A person must not install any electrical equipment which the person knows or should reasonably be expected to know is unsafe or will be unsafe if connected to an electricity supply.
(2) The occupier of any premises in which there is any unsafe
electrical equipment must—
(a)
cause the electrical equipment to be removed from the premises or to be made safe; or
(b)
in the case of electrical equipment forming part of an electrical installation, notify the owner of the premises of the unsafe electrical installation.
Penalty: 40 penalty units.”
302 An action can lie for breach of statutory duty independent of negligence and even if there is a finding of no negligence: Murfin v United Steel Companies Ltd.[17]
[17] [1957] 1 All ER 23
Elements of a Breach of Statutory Duty
303 There are generally four elements required for an individual to establish a breach of statutory duty. They are:
(1) Parliament intended to protect a specified class of persons and intended to create a private right of action for breach of the duty imposed by the provision; (2) the plaintiff was a person within the class of persons intended to be protected (and the defendant was a person whose conduct fell within the statutory prescription); (3) the obligation imposed by the statute was breached (issues regarding absolute liability and reasonable standards of care are brought in here); and (4) the plaintiff suffered damage as a result of the breach. 304 Counsel for the plaintiff in the present case relied on the judgment of Dixon J in the seminal case of O’Connor v SP Bray Ltd.[18]
[18] (1937) 56 CLR 464
305 In oral submissions, whilst conceding in some circumstances a statute could give rise to a civil remedy, Counsel for the defendant simply submitted “this is not such a statute”.[19]
[19] Transcript 162, L4
306 In its Defence, the defendant did not admit the existence of statutory duty. Unfortunately, I was not helped by counsel for the defendant in either written or oral submissions concerning the existence or otherwise of a private right for breach of Section 43(2).
307 Counsel for the defendant focussed on what constituted a breach, asserting that the section required knowledge on the part of the occupier, not the anterior question as to whether a private right existed. However, it seems to me this issue is particularly relevant to my considerations.
308 In O’Connor, it was held that a provision (which was intended to protect the public in general) also gave rise to a private right of action for its breach. The reason why a provision (which did not narrowly define a specified class of protected individuals) was upheld, was because the provision was intended to prevent harm from specific dangers to which certain individuals were brought into close proximity with, by reason of their employment.
309 In O’Connor, the plaintiff sought to claim damages for injuries he had sustained in a lift accident on the defendant’s premises where he was employed. The legislation in question proscribed that safety gear must be provided for all lifts, except for service lifts or lifts in which no person travels.[20] Dixon J noted:
[20] The provision was found in cl. 31(b) of the regulations to the Scaffolding and Lifts Act 1912 (NSW). There were issues whether the lift was a service lift and not used by people; however, the Court noted that there was some use of this nature so this did not apply as a defence to the breach of statutory duty.
“… I think it may be said that a provision prescribing a specific precaution for the safety of others in a manner where the person upon whom the duty laid is, under the general law of negligence, bound to exercise in due course, the duty will give rise to a correlative private right unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on.”
310 Dixon J also said:
“The received doctrine is that when a statute prescribes in the interests of the safety of members of the public or a class of them a course of conduct and does no more than penalise a breach of its provisions, the question whether a private right of action also arises must be determined as a matter of construction.”
311 As Forrest J stated in the recent case of Matthews v SPI Electricity Pty Ltd (Ruling No 2):[21]
[21] [2011] VSC 168 (10 May 2011) at paragraph 64
“The question whether a statute confers a private right is one of
construction and not dependent upon a substratum of facts.”
312 Subsequent to O’Connor, the High Court dealt with the question of the existence or otherwise of a statutory duty in Sovar v Henry Lane Pty Ltd[22] and more recently in Byrne v Australian Airlines Limited.[23]
[22] (1967) 116 CLR 397 at 404-405
[23] (1995) 185 CLR 410
313 It was noted by Kitto J in Sovar v Henry Lane Pty Ltd:[24]
[24] (1967) 116 CLR 397 at 405, citing the case of Martin v Western District of Australasian Coal and Shale Employees’ Federation Workers’ Industrial Union of Australia (Mining Department) (1934) 34 SR (NSW).
“The question whether a contravention of a statutory requirement of the kind in question here is actionable at the suit of a person injured thereby is one of statutory interpretation. The intention that such a private right shall exist is not, as some observations made in the Supreme Court in this case may be thought to suggest, conjured up by judges to give effect to their own idea of policy then ‘imputed’ to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations from the nature, scope and terms of the statute, including the nature of the conduct prescribed, the pre- existing state of the law, and generally the whole range of circumstances relevant upon a question of statutory interpretation.”
314 As Kitto J emphasised, it is of paramount importance to examine the nature, scope and terms of the statute, together with looking at the pre-existing state of the law. However, when performing this task, his Honour has counselled caution against the Court imputing their own policy considerations to the statute in question, without ensuring that these views are actually supported by the legislation itself.[25]
[25] In the matter of Chan v Minister for Immigration, Local Government & Ethnic Affairs (1991) 31 FCR 29, Einfeld J noted that it was necessary to balance the protection of liberty and due process with the need for public officials to carry out their obligations honestly and in good faith, free from fear of action for damages at 38, when examining the Migration Act 1958 (Cth). This is compared with the words of Hayne J who stated in the matter of Brodie v Singleton SC (2001) 206 CLR 512, that judges should not give effect to their own ideas of policy.
315 The High Court in Byrne held that an industrial award made pursuant to the Industrial Relations Act 1988 (Cth), which imposed a penalty for its breach, did not give the aggrieved workers a cause of action for statutory breach against their employer. In that case, the Court re-stated the principle at 424 as follows:
“A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage.”
316 The Court of Appeal in Gardiner v State of Victoria[26] was required to consider whether a provision of the Accident Compensation Act 1985, which required an employer to provide employment to an injured employee during a specified period, gave the employee a statutory right to a private action. The provision also provided for a criminal penalty in the event of a breach by the employer.
[26] [1999] 2 VR 461
317 Phillips JA (with whom Winneke P agreed), said as follows:
“The fundamental task, then, is to determine whether the statute evinces an intention that the individual should have a right of action for breach of the statutory duty.”[27]
[27] at [24]
318 Having cited the statement in Byrne, Phillips J went on to say:
“Thus it is often asked whether, upon a proper consideration of the scope and purpose of the statute as a whole, it can be said that the Act which contains the particular obligation at issue was passed primarily for the general good; for if the statute as a whole can fairly be characterised as passed primarily for the general good rather than for the benefit or protection of some only within the wider community, that is nowadays regarded as pointing strongly against a Parliamentary intention that an individual should be able to sue for non-compliance with some particular provision. On that footing, legislation providing for the general regulation of prisons has been held to give no private right of action for breach, though such legislation doubtless operated, at least in part, to protect the inmates: R v Deputy Governor of Parkhurst Prison Ex parte Hague. So too, social welfare legislation, setting out the duties of authorities relating to the protection of children against abuse, has been held to create no private right of action: X v Bedfordshire County Council.”[28]
[28] at [24]
319 In Matthews, Forrest J having considered these authorities, stated that it flowed from these statements of principle that there are two questions which must be answered affirmatively.[29]
[29] at [68]
320 In this case, those questions are:
(a) Did the legislature in enacting the ESA intend to impose an obligation on occupiers in relation to the safety of electrical installations on their premises? (b) Did the legislature intend to convey a private right upon an individual so that he or she could sue for non compliance? As part of that analysis one must ask whether the legislature intended, in imposing an obligation under the ESA, to benefit a particular class of persons as opposed to the community in general – was it passed primarily for the general good? 321 Forrest J then stated:
“These are both questions of statutory construction. The answer to these questions requires analysis of the purpose and intention of the Act having particular regard to the stated objectives within the legislation itself. In determining the intention of the legislature, and bearing in mind the provisions of the Interpretation of Legislation Act (Vic) 1984, one examines the nature, scope and terms of the statute, including the particular evil against which it is directed, the nature of the conduct which is prescribed and the pre-existing state of the law and the general circumstances surrounding the introduction of the particular provisions.”[30]
[30] See Byrne at 460-461; Sovar at 405
322 Many statutes remain silent as to whether Parliament intended to confer a private right for statutory breach. As Dixon J observed in O’Connor:
“The difficulty is that in such a case the legislature has in fact expressed no intention upon the subject and an interpretation of the Statute according to ordinary cannons of construction will rarely yield a necessary implication positively giving a civil remedy.”
What did the Legislature Intend?
323 Counsel for the plaintiff submitted that the purpose of Section 43 was clearly to maintain premises in an electrically safe condition. Accordingly, it was submitted that it was appropriate that a breach of duty should give rise to a cause of action in the present case where the plaintiff had been injured because the premises at which he was required to work were electrically unsafe.
324 Counsel for the defendant did not really address the issue whether or not the plaintiff had a private right against the defendant for breach of Section 43(2).
325 The ESA does not expressly confer a private civil right on the plaintiff. Further, there is no reference in the Hansard reading to the same. The Act therefore remains silent in this regard.
326 There is no case law on this provision (nor any other State’s equivalent provision). Consequently, the answer to this issue turns upon the interpretation of Section 43(2).
327 The purpose of the ESA is ‘make further provision’ regarding the safety of electricity supply and use, and to ensure the reliability and security of electricity supply, as well as to ensure the efficiency of electrical equipment.
328 The ESA was set up to consolidate a number of former statutes (namely, the Electricity Industry Act, Electric Light and Power Act and State Electricity Commission Act).
329 As seen from the general purposes of the ESA, there is a general aim to ensure that there is safety regarding electricity use (which would encompass electrical equipment) (which, according to s.3 means any appliance, wire, fitting, cable, conduit or apparatus that generates, uses, conveys or controls or that is intended to generate, use, convey or control electricity).
330 According to s.35 of the Interpretation of Legislation Act 1984, an Act is to be interpreted in a manner that would promote the purpose or object underlying the Act.
331 With specific reference to Section 43(2), it is noted that it appears under Division 3, which is entitled ‘electrical installation work’. Therefore, it appears from this sub-heading that the section is concerned with safety regarding the electrical equipment being installed (either by a registered contractor (see ss 30 and 31 of the ESA) or by another person).
332 Section 54 of the ESA states that a person must not supply electrical equipment unless it complies with the minimum standards as prescribed for equipment of that class (and the work must adhere to working regulations and guidelines s.42).[31]
[31] See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at paragraph 69
333 With reference to section 43(2) of the ESA, it places an onus on an occupier to ensure that electrical equipment (either installed by a licensed trader or not) is safe, and if it is not, to cause it to be removed.
334 In my view, Section 43(2) is concerned with ensuring industry compliance through establishing mandatory rectification/reporting by occupiers and owners of unsafe electrical equipment in the context of the overarching Division 3 “Electrical Installation Work” in PART 3 of the ESA.
335 PART 3 sets out a licensing and disciplinary regime applying to contractors/workers/prescribed persons and prohibits the installation of unsafe electrical equipment. In the event that it is installed, it sets up a mandatory removal/reporting requirement of occupiers/owners.
336 I am satisfied that Section 43(2) did intend to impose an obligation upon an occupier in relation to the safety of electrical installations on the premises.
337 However, that does not resolve the question whether such an obligation in effect creates a private right (see para 325 of this judgment).
338 In my view, the section does not appear to be concerned with the protection of a class – in this case, tradesman – from injury at all, but more with the protection of the community generally by ensuring that electrical installation complies with industry standards, the rectification/reporting of unsafe work, regulation and disciplinary regimes.
339 Section 43(2) therefore was not intended to create a private right by imposing an obligation against occupiers to benefit a particular class of persons. It was passed primarily for the general good rather than for the protection of a specific class.
340 That is “nowadays regarded as pointing strongly against a parliamentary intention that an individual should be able to sue for non compliance with that particular provision”: see Gardiner v State of Victoria.[32]
[32] [1999] VSCA 100 per Phillips J at [24]
341 On that footing, legislation providing for the regulation of prisons has been held to give no private action for breach though such legislation doubtless operated at least in part to protect the inmates: see R v Deputy Governor of Parkhurst Prison; Ex parte Hague.[33]
[33] (1992) 1 AC 58
342 In that case, a prisoner brought a claim for false imprisonment pursuant to the Prison Act. It was held by the House of Lords that the Act was to deal with the administration and management of prisons and control prisoners but nothing in the Act suggested, where there was a breach of the Act, Parliament intended to confer on prisoners the right to damages. The Rules were regulatory in character and provided a framework for the operation of the prison regime but were not intended to protect prisoners against loss and damage, nor give them a right of action.
343 A similar finding was made in X (minors) v Bedfordshire County Council[34] in terms of child welfare legislation setting out the duties of authorities relating to the protection of children against abuse was held to confer no private right of action.
[34] (1995) 2 AC 633
344 In this case, I also consider that the existence of a penalty of 40 penalty units for breach of Section 43(2) counts against the existence of a private right
345 In some instances, a penalty provision is considered to be Parliament’s way of ousting a private civil right. This is meant to act as ‘expressum facit cessare facitum’ (or where a particular procedure is designed to achieve something (as stated in statute), then other procedures are thereby excluded). In Martin
v Western District of Australasian Coal & Shale Employees’ Federation
Worker’s Industrial Union of Australia (Mining Department),[35] Jordan CJ noted that:
[35] (1934) 34 SR (NSW) 593
“ … it is manifest from the whole scope and purview of the Act, that the special remedy provided by the Act is the exclusive remedy for any breach of the new right to admission provided by s 52I [of the Industrial Arbitration Act 1912 (NSW) (now repealed)].”[36]
[36] at 603
346 In my view, the existence of this penalty is further evidence of Parliament’s intention in relation to the consequences of a breach of Section 43(2) and counts against the existence of a private right.
347 Having determined there is no private right, it is not strictly necessary for me to address any questions related to breach.
348 However, for the sake of completeness, if I concluded there was such a right I would have found that a breach thereof was not dependent on the knowledge of the occupier/defendant of the faulty wire, as was submitted by counsel for the defendant.
349 I accept the submissions of counsel for the plaintiff that the contrast between sub-s.1 and 2 of Section 43 is marked. The principle of expressio unius est exclusio alterius it was submitted, establishes that there is no requirement of knowledge or imputed knowledge in relation to the application of subsection (2).
350 Counsel for the defendant submitted that as it was provided that an occupier of premises must cause unsafe electrical equipment to be removed or to be made safe, knowledge of an unsafe situation is a prerequisite for the requirement for removal.
351 It was submitted that the words “cause to be removed” carried with them the clear indication that there is a period of time until the discovery of the fact of an unsafe situation and its removal. It was submitted if Parliament had intended the breach to be established merely by the presence (as against the failure to cause to be removed) the unsafe equipment, in the absence of knowledge, then quite different language would have been used to signify that the offence was simply the presence of the unsafe equipment.
352 However, in the absence of words such as “knows or should reasonably be expected to know” in subsection (2) and their inclusion in subsection (1), I reject the submissions of counsel for the defendant and accept that there is no knowledge requirement for the application of subsection (2). There is no warrant for reading such words into subsection (2).
353 Having made this finding therefore, I accept that if a private right is created, subsection (2) is a strict liability provision and the presence of the exposed wire on the premises constitutes the statutory breach and the defendant is not permitted to rely on his lack of knowledge of that danger. This is clear from the decisions in Galashiels Gas Co Ltd v O’Donnell[37] and Kirkpatrick v Lewis Construction Pty Ltd.[38]
[37] (1949) AC 275 at 282-283
[38] (1964) VR 515
354 Given my earlier conclusion, it is not necessary to say any more on this issue.
Summary and Conclusions
(a) The plaintiff has not established any breach of PART II of the Wrongs Act or the terms of the contract between himself and the defendant (b) Section 43(2) of the ESA does not provide for a private right of action and therefore the claim for breach of statutory duty fails. 355 Accordingly, I give judgment for the defendant.
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