Victorian WorkCover Authority v BlueScope Steel Ltd
[2013] VSC 564
•23 October 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. SCI 2012 04953
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| BLUESCOPE STEEL LTD (ACN 000 011 058) | Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9, 10, 14, 15, 16, 17 October 2013 | |
DATE OF JUDGMENT: | 23 October 2013 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v BlueScope Steel Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 564 | |
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ACCIDENT COMPENSATION – Injury to worker while performing work on defendant’s premises – Compensation paid to worker – Whether Authority entitled to indemnity from defendant – Whether injury to worker caused by breach of defendant of s 146 of Wrongs Act (Vic) 1958 – Accident Compensation Act 1985 (Vic) s 138.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird | Wisewould Mahony |
| For the Defendant | Mr I McDonald | Sparke Helmore |
HIS HONOUR:
At the times which are material to these proceedings, Mr Brett O’Driscoll was employed as an electrician by Downer EDI Engineering Electrical Pty Ltd (“Downer”). On 12 April 2009, he was injured while working in the course of his employment on electrical equipment at the premises of the defendant in Hastings. The injury occurred when Mr O’Driscoll’s right hand came into contact with a defective part of a live cable, while he was performing electrical work in the substation control room at the premises.
The plaintiff, the Victorian WorkCover Authority, has paid, and remains liable to pay, compensation to Mr O’Driscoll in respect of his injury pursuant to the Accident Compensation Act 1985 (Vic) (“the Act”). In this proceeding, the plaintiff claims indemnity against the defendant under s 138(1) of the Act in respect of those payments, on the basis that the injury to Mr O’Driscoll occurred in circumstances which created a legal liability in the defendant to pay damages to him. The parties have resolved the quantum of factor “A” referred to in s 138(3)(b) of the Act. The issues which remain in contention are, first, whether Mr O’Driscoll’s injury occurred in circumstances creating a legal liability in the defendant to pay damages for it, and, if so, secondly, the extent by which the defendant’s negligence caused or contributed to his injury, for the purposes of factor “X” in the formula contained in s 138(3)(b).
Circumstances
The defendant’s premises occupy a large site on the edge of Hastings, near Westernport Bay. The defendant’s plant is fed by two 220,000 volt lines directly from the electricity supplier. That supply is connected to the main 220 KV substation at the premises. The defendant owns and operates all of the electrical equipment from that substation to its plant. The function of the substation is to convert the incoming electricity to a suitable voltage for distribution and use around the plant.
The defendant’s electricity distribution system had an inbuilt protection system which was designed to detect abnormal situations, and to trip the required circuit breakers to remove the faulty part of the electrical system from the circuit. The defendant, for that purpose, maintains a back up battery supply of power to the protection system, to enable it to properly function in the circumstances of a fault. The battery direct current system consists of a battery, and a charger.
In 2008, the defendant undertook a substantial project involving the upgrade of the trip supplies around its plant. The purpose of the upgrade was to duplicate the protection system by installing additional trip supplies, batteries and chargers around the plant. For that purpose, Downer was engaged by the defendant as the electrical contractor to carry out a number of different aspects of that upgrade. As part of that process, in about March 2009, the defendant contracted with Downer to undertake the replacement of the battery banks and the charger in the main substation control room.
Mr O’Driscoll was employed by Downer as the supervisor of its employees who were performing that work. At the time at which Mr O’Driscoll was injured, he was working in the substation control room. He had commenced to work there on 6 April, four days before his accident. His job involved the removal of the old battery banks and cables, and the replacement of them with new batteries and battery cables. The batteries were connected to a distribution panel in the control room, which then fed out into the switch yard to the individual circuit breakers. At the commencement of the trial, I attended a view with the parties at the premises to gain a better understanding of the evidence of Mr O’Driscoll concerning the circumstances of his injury.
The distribution panel, on which Mr O’Driscoll was working, is contained in the substation control room. Inside the control room there is an alarm panel, which is near the main entry door to the room. On the top left hand side of that panel is a series of alarm lights. Each of the alarm lights relate to a particular part of the defendant’s electricity system. When there is a fault in the system, the light relevant to the part of the system affected is illuminated, and a loud bell sounds.
Inside the control room is another panel, which consists of the distribution panel. Adjacent to that panel, through a doorway, is a small adjoining room. Inside that room are contained the battery panels, which were being replaced by Mr O’Driscoll and his fellow workers as part of the tasks they were performing at that time.
Mr O’Driscoll suffered his injury when he was working at the rear of the distribution panel. He was then working in a reasonably confined space between the rear of the panel and the wall of the control room. There are three sections at the rear of the distribution panel. On the right hand side of the panel (when faced from the rear) is the distribution panel itself. At the left of it, and immediately adjacent to it, is a battery charge panel. At the time of Mr O’Driscoll’s injury, that panel was (and still is) decommissioned. It is convenient to refer to it as the “old battery charge panel”. Immediately to the left of that panel is the battery charge panel which was, and still is, in commission. It is convenient to refer to that panel as the “new battery charge panel”.
Underneath the three panels, to which I have just referred, was a trench. It was about twenty to thirty centimetres deep and it ran in a straight line underneath the three panels.
At the time at which he was injured, Mr O’Driscoll was changing the battery cables to the distribution panel. He performed that task by inserting the new cable (which had come from the battery room) through a cable chamber in the new battery charge panel. He did that by feeding the new cable down an opening to the cable chamber at the top of the new battery charge panel. Having fed the cable into that panel, he then lay on the ground with his left arm inserted into an opening under the new battery charge panel. Using that arm, he pulled the cable into the trench, and forced it along the trench. He then lay on his side and, with his right arm, reached into the trench under the distribution panel to take hold of the cable. It was while Mr O’Driscoll was performing that action, that his right hand came into contact with a live wire, as a result of which he received a severe electrical shock. As a result, he sustained a serious injury to his lower back, and a psychological injury.
It is common ground that Mr O’Driscoll received his shock from a live cable in which there was a small defect. At the time he was injured, Mr O’Driscoll was wearing leather riggers gloves. The area in which he was working was very hot, and his hands were soaked with perspiration. There was a small hole in the insulation around the cable in question. It is accepted that the most probable hypothesis is that when Mr O’Driscoll’s glove came into contact with that defect, his perspiration on it acted as a conductor for the electricity contained in the live cable, as a result of which he received the shock.
The claim
In its amended statement of claim, the plaintiff alleged that the defendant was liable for the injury caused to Mr O’Driscoll because of a breach by it of its duty as an occupier of the premises pursuant to Part 2A of the Wrongs Act 1958 (Vic). The plaintiff also pleaded that the defendant was liable on the basis that it had breached statutory duties which it owed to Mr O’Driscoll. That aspect of the plaintiff’s claim was abandoned during the hearing before me.
The plaintiff pleaded a number of particulars of the alleged breach of duty by the defendant. However, in the course of the hearing, the claim was confined to three alleged breaches of the duty by the defendant.
First, the plaintiff alleged that the defendant knew, or ought to have known, that the cable, which was the cause of Mr O’Driscoll’s injury, was defective, and that the defendant had failed to warn Mr O’Driscoll of that fact. In particular, it alleged that the defect in the cable had been the cause of five earth fault alarms recorded in the defendant’s log book between August 2008 and December 2008, and that the defendant had not satisfactorily identified and remedied that cause of the alarms.
Secondly, the plaintiff alleged that, if the defect in the cable did not cause the earth fault alarms, in any event the defendant should have warned Mr O’Driscoll, or required, that he should wear voltage rated gloves while performing the task undertaken by him at the time at which he was injured.
Thirdly, the plaintiff alleged that the defendant had breached its duty to Mr O’Driscoll by having failed to carry out any adequate inspection of the cables at the premises in the area in which Mr O’Driscoll was working at the time at which he was injured.
In response, the defendant has disputed each of the three bases upon which the plaintiff alleges that the defendant breached its duty to Mr O’Driscoll. Alternatively, it is submitted on behalf of the defendant, if there was any breach of duty by it, the injury to Mr O’Driscoll was caused by the breach of duty of care owed to him by his employer, Downer, and by the contributory negligence of Mr O’Driscoll.
The evidence
The principal witness for the plaintiff was Mr O’Driscoll. Mr O’Driscoll is a qualified electrician, who had been employed by Downer for a number of years before he was injured. Mr O’Driscoll commenced working at the defendant’s premises in August 2008 performing work on the transformers. His role was as the site supervisor. Mr O’Driscoll and his fellow employees commenced work in the substation control room on Monday, 6 April 2009.
Before commencing that work, Mr O’Driscoll had attended a Potential Problem Analysis (“PPA”) meeting, which was held on two days, on 17 March and then 2 April 2009. The meeting was attended by a number of employees of the defendant, including Mr Tom Lowry, who was in charge of maintenance at the site, Mr Ian McNeil, an electrical engineer at the site, and Michael Bouwmeester and Ben Lazzar, two electricians employed by the defendant. The role of the PPA was to identify any potential problems in the job which was to be performed. At that the meeting, no mention was made of any previous problem involving an earth fault in the DC 240 volt battery area. In particular, no mention was made by employees of the defendant of any earth fault alarms which had previously been activated in respect of the area in which he was working. Further, he was not told that it was necessary to wear protective gear, such as gloves, when performing the work which he was required to undertake in the transformer control room.
Mr O’Driscoll referred to a log book, which was maintained by the defendant, and which was tendered in evidence. That log book noted that, between 5 August 2008 and 4 December 2008, there were six records of earth faults relating to the 240 volt DC battery system on which Mr O’Driscoll was working at the time he was injured. He reiterated that he was not told of any of those previous events. He said that, if he had been told about those previous faults, he would have asked questions about the cause of the faults, and the steps taken to locate and rectify the faults. He said that, if he had decided to go ahead and carry out the work in the substation control room, he would have worn voltage rated rubber gloves to perform that work.
Mr O’Driscoll also referred to a “Job Safety and Environment Analysis” (“JSA”) certificate, which was compiled by him and members of his crew before he commenced work in the control room. He explained that, before work is performed in a particular area, it is necessary to identify all potential risks, that might be relevant. Each member of the crew, who are to work in the area, contribute to the compilation of the document, which is then provided to the occupier (the defendant) for authorisation and approval. Work may only commence after the defendant provides an “Authority to Work Permit”. Mr O’Driscoll observed that there was no notation, on the JSA certificate, that it was necessary to wear voltage rated gloves when performing the work, which was to be undertaken by him.
Mr O’Driscoll then gave evidence as to the circumstances in which he was injured, which I have already described. He said that, within about an hour of receiving the shock, Mr Lowry and he returned to the control room to look for the cause of it. The floorboards at the front of the distribution panel were removed. Using a strong spotlight, Mr O’Driscoll and Mr Lowry then identified a misshapen piece of cable, which was flattened, rather than being its normal round shape.
On the Wednesday after the Easter break, the second battery charger was isolated, and the particular cable was removed. Mr O’Driscoll then tested the damaged section of the cable with an insulation resistance tester. He said that that section of cable “came through with flying colours” while it was dry. However, when he added a small bit of saliva onto the area of damage, it short circuited, which meant that there was no resistance. Mr O’Driscoll stated that he only needed to use a small amount of moisture to produce that effect.
Mr O’Driscoll stated that, approximately one month before he was injured, he had conducted a site walk with Mr McNeil, Mr Lowry and Mr Lazzar. On entering the substation control room, he had noted that there was a warning light shining on the alarm panel. Mr O’Driscoll stated that he asked the employees of the defendant what was the cause of the light being illuminated. In response, he was told the problem was “out in the field”, and that the defendant was working on it.
In cross-examination, Mr O’Driscoll stated that he had worked with Downer for 17 years before the accident. He accepted that Downer is an experienced, competent installation contractor, and that he himself, at the time of the accident, was a competent, highly experienced and well accredited electrician.
Mr O’Driscoll further accepted that the alarm system at the defendant’s premises was configured in such a way that, if the fault, which triggered the alarm, was not rectified, but the reset button on the alarm panel was pressed, the light on the alarm panel would remain illuminated. He agreed that when he received the electric shock, the alarm activated. Thus, if there had been any pre-existing fault, in that part of the circuit, the fault must have cleared itself.
Mr O’Driscoll rejected the proposition that, in those circumstances, the cause of the previous earth fault alarms, recorded in the log book, must have been located and rectified. He stated that it is possible for a fault, which triggers an alarm, to clear itself. In particular, he postulated that it is quite possible for dust to have accumulated on the cable in question, including on the defective part of it. Dust is a good conductor of electricity, and thus, he considered, it is quite possible that the previous faults, noted in the log book, had been triggered by dust. He stated that those previous faults might have cleared themselves, because the electricity would have had enough power to push through the dust and burn it off. He said that he had had previous experience of that phenomenon, and, in particular, he had observed circuit breakers in switchboards blow up because of the accumulation of dust on them.
Mr O’Driscoll agreed that dust, which contains traces of metal, would be more conductive than normal household dust. However, he disagreed with the proposition that standard dirt dust would not be sufficiently conductive to cause a battery earth fault alarm. He stated that power transmission companies would also disagree with that proposition. Those companies are careful to ensure that insulators on high voltage power lines are kept free from dust in order to prevent them catching fire. Mr O’Driscoll, however, agreed that the earth fault alarms, that were noted in the log book, could have occurred in any of the panels or wiring in the substation control room, or in any of the wiring buried outside in the cable trenches within the main substation, or on any of the circuit breakers, transformers or isolators in the main substation.
Mr O’Driscoll, when cross-examined, adhered to his evidence that he had, before the date of his accident, observed the light on the alarm panel in the control room illuminated. He agreed that he had commenced work in the control room on 6 April, and that, by that time, the alarm light had ceased to be lit. He said that he had seen the alarm light illuminated some time well before the date on which he started work in the control room.
In cross-examination, Mr O’Driscoll maintained that, when the cable in question was removed from behind the distribution panel, he tested it by putting a small amount of saliva on the defective part of the cable. He said that Mr Tom Lowry was present at the time of that test. He said that he conducted the test in the control room itself. He could not recall being present at any test of the cable which was conducted in the workshop. He said that the testing which he conducted was by use of his own 500 volt megger.
Mr O’Driscoll agreed that the minutes of the PPA meeting, which had been held on 17 March and 2 April, referred to the possibility of contact with live conductors. He agreed that one method of addressing that hazard is to use voltage rated gloves. However, he said that he rarely used those gloves. He agreed that voltage rated gloves were available in the substation control room, and he could have used those gloves, if he had felt that he needed them. He said that he did not specify voltage rated gloves in the JSA, because it did not seem appropriate at the time. He said that the main risk of the work, which he was then performing, was scraping his hand on sharp objects, and it was for that reason that he chose to wear leather riggers gloves.
The other witness, who was called on behalf of the plaintiff, was Mr Russell Lee, a consulting engineer. In his evidence, Mr Lee revealed that he had understood that the alarm light, indicating an earth fault in the 240 volt DC battery system, was still illuminated when Mr O’Driscoll was working in the control room. In fact, that assumption of fact by Mr Lee was not supported by the evidence of Mr O’Driscoll, to which I have just referred.
Mr Lee stated that, for the class of work which Mr O’Driscoll was performing, it was reasonable for him to wear ordinary leather gloves. That was because the JSA did not contemplate that there would be live cables, or exposed live metal, in the trench in which he was placing his hands. However, leather gloves may act as conductors because they tend to become damp with perspiration. He said that if the alarm was still active, Mr O’Driscoll should have worn voltage rated gloves. He also stated that, if the previous earth fault alarms, recorded in the log book, were connected with the equipment on which Mr O’Driscoll was working, and if they had not previously been remedied, Mr O’Driscoll should have been required to wear voltage rated gloves.
In cross-examination, Mr Lee criticised the JSA, submitted by Mr O’Driscoll, as being incomplete, because the copy produced to the Court was not signed. Otherwise, he considered that the JSA was sufficiently complete in its content. He accepted that, because Mr O’Driscoll had prepared the JSA, he could have specified voltage rated gloves, if they were required. Such a specification would only have been necessary if the defendant was aware of, or should have been aware of, the fact that there was damaged cable in the equipment on which Mr O’Driscoll was working.
Mr Lee agreed that it is standard procedure to cover any live equipment with plastic sheeting, in the area in which an electrician is working.
In response to the plaintiff’s case, four witnesses were called on behalf of the defendant. The first witness was Thomas Lowry. Mr Lowry is a qualified electrician with more than 30 years’ experience. At the time of Mr O’Driscoll’s accident, Mr Lowry was employed as the supervisor of the power distribution at the defendant’s plant. His area of responsibility included the monitoring and detection of problems related to the alarm system.
Mr Lowry gave evidence about each of the battery earth faults noted in the log book, to which Mr O’Driscoll had referred in his evidence. Mr Lowry stated that, in each case, the likely cause of the earth fault alarm was moisture on the field devices, which were located outside the substation control room. He said that all the earth faults, which had been attended by the defendant on the 240 volt system, had been rectified by repairing the switches on isolators and equipment out in the substation itself, and that those earth faults had nothing to do with the control room. The faults, referred to in the log book, were quite common in wet weather, because the devices were out in the field. He said that, at that time, those devices were not well insulated, and moisture was prone to infiltrate them. He said that moisture had been the sole cause of the earth fault alarms to the battery system at the defendant’s premises over the last twenty years.
Mr Lowry stated that the problem with water infiltrating the external appliances recurred in the latter half of 2008. At that time, the defendant undertook a concerted effort to check all the earth switches and devices in the field, re-insulate them and re-seal them. He said that that work was performed in the latter half of 2008. Mr Lowry stated that he had never known an earth fault alarm to have been triggered by a defect in one of the cables inside the control room.
Mr Lowry further stated that it was most unlikely that the earth fault alarms, noted in the log book, were related to the damaged cable, which was the cause of Mr O’Driscoll’s injury. If the defect in the cable had previously triggered the alarm, then the alarm would not have been able to reset, but would have continued to operate. In particular, if the fault was not rectified, the light on the alarm panel would have remained illuminated.
Mr Lowry further stated that he had never known an earth fault alarm to have been triggered by an accumulation of dust on a damaged cable, which had then burnt itself off. He said that if dust caused the problem, and then was burnt off, that process would trigger the fire alarm system, which was very sensitive to smoke. In addition, the burning off of the dust would have left a residue of carbon, which is a very good conductor of electricity, so that the earth fault alarm would have continued to be activated, and would not have been able to be reset. Mr Lowry stated that when the cable in question was removed after Mr O’Driscoll’s accident, it was not burnt, and it was not dusty.
Mr Lowry further stated that there were no earth fault alarms noted in the log book between December 2008 and April 2009, because the weather in that period was drier, and also because, by then, the defendant had completed checking, re-insulating and re-sealing the field devices. He further confirmed that, after 9 April, there had been no further earth fault alarms, for the same reason.
Mr Lowry stated that when the alarm went off after Mr O’Driscoll was injured, he entered the control room and gave assistance to Mr O’Driscoll. Later, Mr O’Driscoll described to him how he had suffered an electric shock. At that time, there were barricades on the live conductors. Thus, Mr Lowry excluded the possibility that the shock was caused by Mr O’Driscoll’s head coming into contact with a live conductor. He considered that the shock must have been first relayed through Mr O’Driscoll’s hand. Mr Lowry then lay on the floor with a mirror and a torch, and was able to detect a cable which appeared to have a small defect in it.
Later that day, the cable was removed, and Mr Lowry was able to observe an indentation in it which was about five millimetres wide. The cable was conveyed to the maintenance services department workshop, where testing was conducted on it. When it was tested dry, it had infinite resistance, which meant that it was sound. It was tested for a second time by dampening the whole of the cable, and again there was a high resistance recorded. On the third test, water was specifically poured onto the damaged section. There was then recorded some, but lower, resistance. Mr Lowry confirmed that that test was consistent with the injury to Mr O’Driscoll occurring when his gloves, which were wet with perspiration, came into contact with that part of the cable.
Mr Lowry stated that he did not see Mr O’Driscoll perform any test in the control room by putting saliva on the defect. If he had observed that to occur, he would have stopped it, because it might have compromised the testing which was to be undertaken by the defendant.
Mr Lowry stated that, in view of the work which was being undertaken in the control room, it was appropriate for Mr O’Driscoll to wear rigger’s gloves, and not voltage rated gloves, because the work did not involve exposed live conductors at that point. The rigger’s gloves were worn to protect Mr O’Driscoll’s hands from scratches and abrasions and the like.
In conclusion, Mr Lowry stated that he had had no knowledge of the existence of the defective cable before Mr O’Driscoll’s accident, and he had no reason to believe that anyone else on behalf of the defendant would have had knowledge of it.
In cross-examination, Mr Lowry reiterated that the defendant had never had a battery earth fault alarm in the main substation, other than in respect of the devices which are in the field. He said that problems, which activated the alarms on those occasions in the field, were not intermittent faults. Rather, each time there was an earth fault alarm, the defendant had managed to attend to the cause of it.
Mr Lowry stated that if he had performed the work which Mr O’Driscoll was carrying out at the time of the accident, he would not have worn voltage rated gloves. However, he would make sure that he wore dry leather gloves, because they become slippery when they were wet, and as a result it is difficult to pull cables with them. He said that he would not recommend voltage rated gloves for that work, because one tends to perspire very freely wearing them, and have a build up of perspiration within the glove in a hot environment. Mr Lowry stated that he would have expected Mr O’Driscoll to have changed his gloves when they became wet.
Mr Lowry confirmed that he was able to detect the defect in the cable by looking from the side of the cabinet, using a torch and a mirror. He said that the defendant did not have a system for inspecting cables over the years. It would not be reasonably practicable to conduct an inspection of the cables looking for potential faults. The cable, on which Mr O’Driscoll was injured, was one out of a very large number of cables in the plant, and that there were kilometres of cables at the defendant’s premises, which are contained in trenches and cable ducts, and which are inaccessible. He said that he did not find the defect in the cable on a routine inspection, but, rather, on a specific investigation, and that, in doing so, he was assisted by Mr O’Driscoll indicating the precise task he was performing at the time of the accident.
In re-examination, Mr Lowry stated that it is not normal industry practice to inspect low voltage cables. He stated that, as a matter of practice, the defendant did not interfere with the installation work carried out by the employees of contractors, unless the defendant were to observe an obvious breach of safety by them.
Mr Benjamin Lazzar was the site supervisor for the “Asset Capital Group” of the defendant at the time of Mr O’Driscoll’s accident. That group was responsible for capital upgrades, and accordingly Mr Lazzar was the site supervisor in relation to the project in question.
Mr Lazzar had not been involved in the maintenance of the substation and its components. However, he stated that any earth fault alarm in the substation would have been triggered in the outside area, and not in the control room, because there is a high moisture content in the outside area. He stated that, if an earth fault alarm was caused by a damaged piece of cable, he would expect that the alarm would be continuous, and it would not clear until the problem was investigated and remedied.
Mr Lazzar further stated that he did not consider that, in a dry environment within the substation control room, a defect in a cable would trigger an earth fault alarm. He had never heard of dust causing an earth fault alarm. Further, if dust was to cause the alarm to activate, it would have to have an extremely high carbon content or metal content. The dust at the substation was normal dust, typical of dust in any suburb of Melbourne. Mr Lazzar did not consider that that type of dust would be capable of triggering an earth fault alarm. If it did trigger such a fault, it would continue to operate until the fault was remedied.
Mr Lazzar stated that he was the supervisor responsible for ensuring that the Downer employees commence work each day, and that the necessary work permit was in place. However, it was not his responsibility to “micro-manage” the contractor’s employees, because they were engaged as a specialist contracting group to undertake the works for the defendant. If, during a site inspection, he had observed a contractor’s employee carrying out an unsafe act, he would have intervened. However, that type of supervision would not involve instructing an experienced electrical contractor that he should not wear rigger’s gloves when they became wet.
Mr Lazzar stated that, if he was to undertake the task performed by Mr O’Driscoll when he was injured, he also would wear rigger’s gloves, to protect him against sharp edges and cuts. The defendant did not have any knowledge of the damaged cable at that time. There was, therefore, no cause to wear voltage rated gloves. Mr Lazzar stated that spare sets of rigger’s gloves were available for the employees of the contractor at the substation.
In cross-examination, Mr Lazzar stated that if he saw a contractor doing something unsafe, he would intervene and stop it. Mr Lazzar said he was in the substation area when Mr O’Driscoll suffered injury. However, he was not present when Mr O’Driscoll’s accident occurred. He said that he was aware that there was live equipment in the area in which Mr O’Driscoll was working. He said that barriers, made of corex plastic, had been put in place to ensure that Mr O’Driscoll did not come into contact with that equipment.
Mr Lazzar stated that if Downer’s employees had considered that they needed voltage rated gloves, they would have been entitled to wear them. However, Mr Lazzar did not consider that it would have been safer to wear those gloves to perform the work undertaken by Mr O’Driscoll. Mr Lazzar stated that, if he had been performing the same task as Mr O’Driscoll on that day, he also would have worn rigger’s gloves. He said that he has never used voltage rated gloves to install a cable, unless he was working on a live panel.
In re-examination, Mr Lazzar stated that if Mr O’Driscoll’s gloves were drenched with perspiration, he would have expected an experienced tradesman to have changed them.
The third employee, of the defendant, called to give evidence was Mr Ian McNeil, who is an electrical engineer. Mr McNeil was the project engineer in relation to the upgrade of the trip supplies at the defendant’s plant.
Mr McNeil stated that the battery alarm system was critical to the detection of faults, and to thus ensuring that the circuit breakers would operate if necessary. He described how if an alarm is activated, an operator is called to attend to it. The operator may press an “accept” button, to deactivate the audible bell, but the light on the alarm panel remains illuminated. If the condition, which activated the alarm, is still operating, the alarm remains fully lit. If that condition has ceased to operate, the light remains half lit. In either circumstance, the light remains illuminated, until the operator has attended to the cause of the alarm, and then pressed the reset button. Mr McNeil stated that, in his experience, all the earth fault alarms in respect of the 240 volt direct current battery had occurred in external equipment in the field, because that equipment was exposed to moisture.
Mr McNeil stated that it was most unlikely that the defective cable, which was the source of Mr O’Driscoll’s injury, had been the cause of the previous activations of the alarm as recorded in the log book. He said that when the cable was removed and detected, there was no loss of resistance in it when it was tested dry. Mr McNeil rejected the hypothesis that the previous alarms had been activated by dust on the defective part of the cable. He said that the dust, present in the control room, was not sufficiently conductive, because it consisted of normal household dust. Further, he stated that there are a large number of exposed terminals in the control room which would be equally exposed to dust, and thus would have been the more probable cause of the activation of the previous alarms, if in fact dust in the control room had been the culprit.
Mr McNeil stated that after cables were installed at the defendant’s premises, he would have expected them to last a very long time, and not require any upgrade. He estimated that there would be many hundreds of thousands of kilometres of cables at the defendant’s premises. He said that it would not be normal practice to inspect along the route of any cable. The part of a cable, which is most likely to be the subject of damage, is at the actual connection points, which were open to and subject to inspections. There was no industry practice whereby routine inspections were carried out of all cables at a plant.
Mr McNeil further stated that Downer was the preferred contractor of the defendant for high voltage and power system work. Downer had good experience, and provided a good level of service. Mr McNeil was satisfied with the qualifications, experience and capabilities of the Downer employees, who worked at the defendant’s premises.
Mr McNeil stated that the JSA for a project is prepared by the contractor, because the contractor knows the work to be carried out and how it should be carried out. It is developed after a site inspection, using the contractor’s experience to plan a method by which the work is to be carried out and to consider any risks which might arise in respect of that work. In preparing the JSA, the contractor is provided with a technical specification document, consisting of a number of drawings, and also undertakes a site visit with a representative of the defendant. When the JSA is submitted, it is reviewed by the defendant to ensure that each step in the contracted work is properly reflected, and that the contractor has sufficiently identified the relevant hazards, and the appropriate controls for those hazards.
Mr McNeil noted that the JSA submitted by Downer, (and prepared by Mr O’Driscoll), did not stipulate voltage rated gloves. The main risk in the work, which was to be undertaken in the control room, was a risk of cuts and abrasions when working below the panels. It was for that reason that leather gloves were specified. Mr McNeil considered that that specification was appropriate. There were no live sources of power below the panels, which were not double insulated, and thus the stipulation of leather gloves in the JSA was appropriate. On the other hand if the contractor had specified voltage rated gloves, the defendant would have accepted that specification, because the contractor is the expert in the work to be performed.
In cross-examination, Mr McNeil stated that Mr Lazzar’s duties were to make sure that the steps prescribed in the commissioning plan were carried out. Mr Lowry’s responsibilities included being an interface with other people working on the plant. That task involved Mr Lowry overseeing the safety aspects of the project. Mr McNeil agreed that if a representative of the defendant observed a contractor carrying out work in an unsafe manner, the defendant would put a stop to it.
Mr McNeil said that voltage rated gloves become very hot when you work with them, and you tend to sweat profusely into them. In addition, they do not protect the hand from cuts or scratches. He said that if Mr O’Driscoll was working near live equipment, the defendant would have required him to wear voltage rated gloves. Where, as in this case, he was working in an area in which the cables were double insulated, the defendant would not recommend voltage rated gloves for that work.
Mr McNeil agreed that it would have been possible to inspect the cable in the area in which Mr O’Driscoll was working.
The defendant also called Dr Colin Grantham to give expert evidence on its behalf. Dr Grantham is an electrical engineer with impressive qualifications.
Dr Grantham stated that a build up of dust over time can cause a leakage of current, which, in theory, could activate an alarm. However, if the alarm was activated, it would remain on, and would require manual intervention to stop it. He said that dust has a fairly high level of resistance, and therefore it would not conduct sufficient current to enable it to be burnt off. In that way, Dr Grantham rejected the hypothesis of Mr O’Driscoll that dust on the defective part of the cable might have been burnt off by the action of electricity passing through it.
In cross-examination, Dr Grantham rejected the proposition that cabling, which is thirty years of age, is past its date of economic use. He said that PVC insulated cables should last for 100 years, provided it is adequately protected from overload. He said that if an electrician is not wearing voltage rated gloves, he should not touch live pieces of apparatus. But it would be safe to touch a cable, because cables are normally double insulated.
Dr Grantham also stated that if the defendant’s cables were in areas where there was some movement or activity which could cause them to be mechanically damaged, they should be periodically inspected. However, if the cable is in a position where there was no such potential for mechanical damage to the cable, it would not be practical to inspect it.
Submissions
In final address, Mr Bird, who appeared on behalf of the plaintiff, abandoned the first basis upon which the plaintiff alleged negligence by the defendant, namely, that by reason of the entries in the log book, the defendant knew, or ought to have known, that there had been a number of earth fault alarms, which had been, or might have been, caused by a defect in the cabling in the area in which Mr O’Driscoll suffered his injury.
Mr Bird also conceded that the plaintiff was not in a position to contend that the defendant ought to have conducted a system of inspection of all of its cables at the defendant’s site. However, he submitted that it was negligent of the defendant not to have inspected the cables in the area in which Mr O’Driscoll was working before he carried out that work. In support of that submission, he relied on the evidence of Mr McNeil, namely, that it would have been possible to conduct such an inspection. He also relied on the evidence of Mr Lowry that, after Mr O’Driscoll was injured, he was able to detect and identify the defect in the cable, which was the cause of Mr O’Driscoll’s injury.
The principal focus of Mr Bird’s final address was that the defendant was negligent in that it failed to advise or require Mr O’Driscoll to wear voltage rated gloves at the time he was performing the work undertaken by him when he sustained his injury. In particular, Mr Bird relied on the fact that, at the time at which Mr O’Driscoll was performing that work, he was in a confined space, and he was not able to see where he was placing his right hand. The defendant, and in particular Mr Lowry, was aware that the control room was hot, and that it was likely that, in performing that work, Mr O’Driscoll’s leather gloves would become drenched with perspiration. Mr Bird also pointed to the evidence of Mr Lowry, in cross-examination, that if he had performed the same task, he would have done it differently, using a draw wire. Mr Bird emphasised the very dangerous nature of electricity. The defendant, as the occupier of the site, had assumed some powers of supervision in respect of the work performed by contractors, and indeed Mr McNeil recognised that the supervisors, employed by the defendant, had the power to stop a contractor performing a task, if that work was being performed in what was perceived to be an unsafe manner.
In those circumstances, Mr Bird submitted that the defendant had breached its duty of care to the plaintiff to take reasonable steps to protect him from suffering injury as a result of the condition of the premises, and, in particular, from suffering injury from any defective cable in the area in which he was working. In making that submission, he conceded that, because Mr O’Driscoll was a very experienced electrician, there was also a substantial degree of contributory negligence on his behalf. He accepted that, if I were satisfied that there was negligence on behalf of the defendant, it would be appropriate to make a finding of contributory negligence, in the order of 60 percent to 70 percent, on behalf of Mr O’Driscoll.
In response, Mr McDonald, who appeared for the defendant, submitted that there was no evidence of any negligence by the defendant, or, indeed, by Mr O’Driscoll or by Downer.
Mr McDonald commenced his submissions by making three preliminary points. First, without exception, the evidence demonstrated that everyone connected with the work performed by Mr O’Driscoll, and the defendant itself, were committed to ensuring the safety of the personnel carrying out that work. Secondly, voltage rated gloves were available to the employees of Downer, including to Mr O’Driscoll. Mr O’Driscoll was an experienced contractor and he was entitled to use the gloves if he considered that to be appropriate. Thirdly, Mr O’Driscoll prepared the JSA in his capacity as an employee of Downer. The JSA did not specify the use of voltage rated gloves. Downer therefore would be vicariously liable for any negligence on behalf of Mr O’Driscoll in that respect.
Mr McDonald submitted that there is no evidence that there was any relevant negligence by the defendant in not undertaking an inspection of the cables in the area in which Mr O’Driscoll was working. He submitted that it was not put to any of the defendant’s witnesses, in cross-examination, that such an inspection should have been carried out. Further, he submitted that, even if such an inspection had been carried out, I should not be satisfied, on the balance of probabilities, that the defect in the cable, which was the cause of Mr O’Driscoll’s injury, would have been detected. If the defect was detected, it would have been subjected to appropriate testing, namely dry testing or damp testing. When the defendant submitted the cable to those two tests, it proved to have a high resistance.
Mr McDonald further submitted that the accident to Mr O’Driscoll was unfortunate and unavoidable. It was a result of a combination of what he described as “freak” circumstances, namely, the chance contact between Mr O’Driscoll’s perspiration soaked gloves, and a very small defect in one of many cables in the area in which he was working. In those circumstances, there was no negligence by any person.
Mr McDonald then turned to the proposition that the defendant should have required Mr O’Driscoll to wear voltage rated gloves. He pointed out that, in the JSA, Mr O’Driscoll himself had specified that rigger’s gloves were appropriate. Mr O’Driscoll was an experienced and respected tradesman. There were voltage rated gloves available for him in the control room. In fact, Mr O’Driscoll had used them when changing the batteries there. Thus, it was a matter for Mr O’Driscoll, the experienced tradesman, to use his own judgment as to when he needed to use voltage rated gloves. The defendant did not have an obligation to provide on the job supervision of Mr O’Driscoll, who was the experienced contractor engaged for that purpose.
Mr McDonald pointed out that the JSA was prepared after Mr O’Driscoll had been provided with the technical specifications for the task, and a site visit. Further, in evidence, Mr O’Driscoll, Mr Lowry and Mr Lazzar all stated that it was appropriate to wear leather gloves, and not voltage rated gloves, for the work performed by Mr O’Driscoll at the time he was injured. That evidence was also supported by the testimony of Mr Lee.
For those reasons, Mr McDonald submitted that there was no negligence established against the defendant. He submitted that, if in fact there was negligence by the defendant, there was a significant degree of contributory negligence by Mr O’Driscoll. In addition, Downer was vicariously liable for the negligence of Mr O’Driscoll in failing to specify voltage rated gloves in the JSA.
Conclusion
Before turning to the two remaining bases, upon which the plaintiff alleges the defendant is liable in this case, it is convenient to make a number of preliminary observations.
First, I accept that each of the witnesses, who gave evidence in this case, were credible and truthful. Indeed, no suggestion to the contrary was made in cross-examination or in final address. Any discrepancies in the evidence between the witnesses may be explained by their different recollections of events, which occurred some four or five years ago.
Secondly, the evidence satisfies me that Downer was, at the time of these events, a respected, experienced and competent electrical contractor. The defendant engaged Downer to perform the electrical works involved in the project it was undertaking, because it had previously had positive experience in using Downer to carry out electrical works on the premises. Mr O’Driscoll himself was a competent, experienced and well credentialled electrician. He had given the defendant no cause to have any concern about his competence, or his commitment to a safe system of work.
Thirdly, the evidence satisfies me that the defendant itself had an appropriate commitment to safe work practices in respect of the work which was undertaken on its site. For that purpose, it had an appropriate best practice guideline, and a project safety management plan. In respect of the project undertaken by Downer, and on which Mr O’Driscoll was working, the defendant had a system including the development of appropriate PPAs and JSAs. The contractor, as the expert party engaged to perform the work, developed the JSA, with the benefit of having available to it the technical specifications for the project, and a site inspection.
Fourthly, it is important to keep in mind the respective roles of the parties involved in this case. The defendant was the occupier of the site on which Mr O’Driscoll was working when he was injured. The cause of action pleaded, against the defendant, is based on a breach by the defendant of its duty as an occupier of the site, pursuant to s 14B of the Wrongs Act 1958. At the relevant time, Downer was the employer of Mr O’Driscoll, and, as such, owed to Mr O’Driscoll the duties of care imposed by the law on each employer. Mr O’Driscoll was also subject to a duty to exercise reasonable care for his own safety. A failure by Mr O’Driscoll to discharge that duty would result in a finding of contributory negligence.
Fifthly, after reviewing all the evidence, I am well satisfied that Mr Bird was correct in abandoning the first basis, upon which the plaintiff had originally asserted that the defendant was liable, namely, that the notations of earth fault alarms in the log book should have alerted the defendant that there may have been a fault in the cabling in the area of the substation control room, in which Mr O’Driscoll was working at the time of his accident. Mr Lowry’s evidence, which was not challenged in cross-examination, satisfies me that each fault, noted in the log book, was caused by the ingress of water into electrical appliances in the outside area of the substation. Those problems were attended to and properly rectified in the latter half of 2008. Mr Lowry’s evidence to that effect is supported by the evidence of Mr Lazzar and Mr McNeil. Thus, I am satisfied that the previous faults were not connected with the defect in the cable, which was the cause of Mr O’Driscoll’s injury. Nor did the defendant have any cause to believe, or suspect, that those faults might have been triggered by some circumstance affecting the cables in the control room in the area in which Mr O’Driscoll was working at the time of his accident.
The concession by Mr Bird, and the evidence on which it was based, is significant. As Mr McDonald stressed in final address, it is important to disregard the wisdom of hindsight. At the time at which Mr O’Driscoll was working in the control room, in which he suffered his injury, the defendant did not have any reason to suspect, or foresee, that he might suffer injury in the manner in which he did, namely, by any part of his anatomy coming into contact with a double insulated live conductor.
Bearing those considerations in mind, I turn to the two remaining bases, upon which the plaintiff has asserted that the defendant is liable for the injury sustained by Mr O’Driscoll.
First, it was contended that the defendant should have conducted routine inspections of the cabling at its premises. In cross-examination, Mr Bird put to witnesses that such an inspection should have taken place in respect of the whole of the defendant’s premises. No doubt recognising the impracticability, if not impossibility, of such an inspection, Mr Bird, in final address, narrowed the allegation relied on by the plaintiff, so as to contend that, before the plaintiff’s accident, the defendant ought to have conducted a routine inspection of the cables in the area of the control room, in which Mr O’Driscoll was working when he was injured.
I reject that proposition. First, there was no basis upon which such an inspection was required. As Dr Grantham pointed out, it is not necessary, nor is it industry practice, to carry out such an inspection of cables in an area in which they are in a stable condition, and thus unlikely to sustain any damage. The evidence of Dr Grantham, to that effect, was not challenged in cross-examination. The plaintiff has not pointed to any particular fact or event which would have required the defendant, in discharge of its duty of care to persons working on its premises, to have undertaken any such inspection.
Further, I am not satisfied, on the balance of probabilities, that, if the defendant had undertaken any such inspection, it would have revealed the defect, which was detected by Mr Lowry after Mr O’Driscoll’s accident. In this respect, it is most important to distinguish between the careful investigation undertaken by Mr Lowry after Mr O’Driscoll’s injury, and the type of routine inspection which, the plaintiff asserts, the defendant ought to have undertaken before the accident. When Mr Lowry undertook his investigation, he knew that Mr O’Driscoll had suffered an electric shock from some aspect of the electrical system in the area in which he was working at the time he was injured. Mr O’Driscoll informed Mr Lowry of, and pointed him to, the specific part of the cabling, under the control panel, on which he was working when he sustained his shock. Mr Lowry then actively sought to find a defect. By using a mirror and a torch, he was able to observe what he described as a “pin prick” defect, which, on closer examination, was five millimetres wide.
In those circumstances, I am not satisfied, on the balance of probabilities, that if, by contrast, the defendant had conducted a routine inspection of the cabling in that area before Mr O’Driscoll’s accident, the same defect would have been detected by such a process. Indeed, as a matter of probability, I am well satisfied that it would not have been detected. Further, as Mr McDonald correctly points out, if the defect had been detected, testing of it when it was dry and when it was damp, would not have revealed that the cable itself was defective. It was only when the defendant specifically placed a significant amount of moisture on the defect that there was a material loss of resistance at that point. In those circumstances, if the defect had been detected on a routine inspection, I am not satisfied that that would have necessarily led to the replacement of the cable in question. Indeed, none of the witnesses, called by the defendant, were cross-examined in relation to that issue. Accordingly, I am left to speculate as to whether or not the cable, in those circumstances, would have been replaced.
For those reasons, I reject the first remaining basis upon which the plaintiff alleges that the defendant was liable for the injury sustained by Mr O’Driscoll, namely, the failure to carry out a routine inspection of the cabling, in the relevant area of the control room, before Mr O’Driscoll was injured.
The main focus of Mr Bird’s final address was on the fact that the defendant did not recommend, or require, that Mr O’Driscoll wear voltage rated gloves to perform the work undertaken by him at the time of the accident. In considering that submission, it is important to bear in mind, first, the fact, as I have found, that the defendant had no basis upon which to consider that the area, in which Mr O’Driscoll was then working, posed any untoward risk to his safety, other than the ordinary risks of working in the vicinity of live electrical equipment. Secondly, it is important to bear in mind that Downer was engaged as the expert electrical contractor to carry out the project. Its lead representative on the site was Mr O’Driscoll. As I stated, the defendant was not Mr O’Driscoll’s employer. Nor, is it alleged in the plaintiff’s claim, was it in a position which was analogous to that of an employer. As such, its duty of care to Mr O’Driscoll was different to, and more limited than, the duty owed by an employer to an employee.[1]
[1]Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 31-32 (Mason J), 47-48 (Brennan J).
In that context, it is significant that it was the contractor, and in particular its representative Mr O’Driscoll, who compiled the JSA, and submitted the JSA to the defendant for its approval. The JSA did not specify voltage rated gloves, but, rather, specified rigger’s gloves as the appropriate protection for the work which was being performed by Mr O’Driscoll at the time at which he was injured. In the absence of any knowledge by the defendant of any fault or danger in the area in which the contractor would be working, of which the contractor was unaware, it was for the contractor, and not the occupier, to specify to the employee of the contractor how the work was to be carried out, and, in particular, how each individual aspect of it was to be performed.
In this respect, it was not suggested that the defendant owed to Mr O’Driscoll a duty to supervise him in the same manner as an employer might do so. In particular, it was not the duty of the defendant to provide on the job regular supervision of Mr O’Driscoll. The defendant made voltage rated gloves available to Mr O’Driscoll. Indeed, he used them when changing the batteries in the control room. Thus, it was for Mr O’Driscoll to exercise his judgment, as an experienced electrician, as to when he should wear such gloves, and when he did not need to do so. There was, in my view, no obligation on the defendant to direct or advise Mr O’Driscoll in that regard, unless the defendant had knowledge, or means of knowledge, of some danger of which Mr O’Driscoll might have been unaware.
Of course, the position might be otherwise, if a failure to wear voltage rated gloves, for the work performed by Mr O’Driscoll, would have been plainly negligent, or if it was contrary to ordinary industry practice. However, the evidence is entirely to the contrary. Mr O’Driscoll himself rejected the proposition that, in the absence of any known defect in the area in which he was working, it would have been appropriate for him to wear voltage rated gloves. In his evidence, he stated that he did not consider such gloves would have been appropriate for the work which he was then performing. In particular, he said that the gloves become full of perspiration and become loose. He stated that his main risk of injury, in performing that work, was from cuts, abrasions and the like, and it was for that reason that he wore leather gloves. Indeed, he stated that, for the whole of his career, he had only once previously worn voltage rated gloves.
The evidence of Mr O’Driscoll, in that respect, was supported by the evidence of Mr Lowry and Mr Lazzar, each of whom stated that, if he had undertaken the task performed by Mr O’Driscoll, he would have worn rigger’s gloves, and not voltage rated gloves. Mr Lee, the expert called by the plaintiff, gave evidence to like effect, namely, that, for the class of work which Mr O’Driscoll was then performing, it was reasonable to wear ordinary leather gloves. He considered that, ordinarily, the type of work then performed by Mr O’Driscoll did not require the wearing of voltage rated gloves.
As Mr McDonald pointed out, it is also important to bear in mind that the task, which was being performed by Mr O’Driscoll, at the time at which he was injured, was one aspect of the overall work which he was performing, over a period of days, in the control room. It was for Mr O’Driscoll, and not the defendant, to determine whether, to perform a particular task in the course of that work, he should wear voltage rated gloves or not. It was not the duty of the defendant to provide day by day supervision of the work performed by Mr O’Driscoll, and to dictate to him when he should, and when he should not, use particular protective equipment in performing a particular task or particular tasks involved in the work.
In this respect, I note the submission made by Mr Bird, based on the evidence of Mr Lowry that, if he had performed the task, he would have carried it out in a different manner. In particular, Mr Lowry stated that he would have used a drawer string to avoid having to place his hand into the cable trench. Mr Lowry advanced that proposition for two reasons. First, he considered that the method, by which Mr O’Driscoll performed the task involved undue stress, on the posture. Secondly, he also considered that it was safer. However, that evidence does not satisfy me, first, that Mr O’Driscoll was performing his work in an unsafe manner, or, secondly, that if so, the defendant should, in some way, have detected that he was doing so, and stopped him working in that manner.
Mr Bird placed some emphasis on the fact that Mr O’Driscoll’s gloves had become drenched with perspiration in the course of the work being performed by him, and it was that perspiration which acted as a conductor when his hand touched the defect on the cable. As I understand it, Mr Bird relied on those facts in support of the proposition that it was foreseeable that Mr O’Driscoll would be performing his work with drenched gloves, which would act as a conductor to any live, and uninsulated, part of the electrical equipment in which he was working.
In my view, those facts did not impose on the defendant, as the occupier, a requirement that it advise or insist that Mr O’Driscoll wear voltage rated gloves when he was performing work in the area in which he was injured. First, as Mr McDonald correctly points out, the accident occurred because of a most unfortunate, and highly improbable, combination of circumstances. Secondly, it was not known that there was any defect in the cables in the area in which Mr O’Driscoll was working. The defendant did not have any cause to believe that the plaintiff’s damp hand might come into contact with any live part of the equipment, which was unprotected by double insulation. Thirdly, the defendant made available to the employees of Downer spare sets of leather gloves which it might use. It was a matter for Mr O’Driscoll, and not the defendant, to determine when Mr O’Driscoll should change his gloves, in order to ensure that he was working with suitably dry gloves when he was performing work in the control room.
Based on those circumstances, I am not satisfied, on the balance of probabilities, that the defendant breached the duty of care owed by it to Mr O’Driscoll, under s 14B of the Wrongs Act, by not advising or requiring that he wear voltage rated gloves in performing the task undertaken by him at the time of the accident.
Conclusion
For the reasons which I have stated, I am not satisfied that there was any breach by the defendant of the duty of care which it owed to Mr O’Driscoll pursuant to s 14B of the Wrongs Act, as alleged by the plaintiff in this proceeding. Accordingly, the plaintiff has failed to establish that the injury sustained by Mr O’Driscoll, and in respect of which the plaintiff has been liable to pay compensation to Mr O’Driscoll, was caused under circumstances creating a legal liability in the defendant to pay damages to Mr O’Driscoll. It follows that the plaintiff’s claim against the defendant must be dismissed.
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