Courts v Essential Energy

Introduction 1The plaintiff, Howard Courts, claims damages for alleged negligence against the first defendant, Country Energy, and Phillip Ridge, the second defendant, for injuries sustained by him on 27 November 2008 at Mr Ridge's property, Wapweelah, in far north-western New South Wales. He was unloading sheep from the top deck of his B-double vehicle when he came into contact with an uninsulated electric power wire of 19.1kW. The electricity passed from his head through his body and out through the toes of his left foot. His left leg was amputated as a consequence about a year after the incident. 2A claim for damages for breach of statutory duty against Mr Ridge was abandoned. Alleged breaches of statutory duty were not relied upon as particulars of negligence.

The delivery to Wapweelah on 27 November 2008 3In November 2008 the plaintiff was retained by Mr Ridge to collect 520 sheep from "Thylungra" at Quilpie in Queensland and drive them to Wapweelah, a property of about 60,000 acres owned by Mr Ridge which is 35kms west of Enngonia, a settlement 96kms north of Bourke and 37kms south of the Queensland border. The plaintiff's records show that he had been to Wapweelah on nineteen previous occasions in the period since December 2001 to pick up and deliver stock. It is very flat country which is predominantly used for sheep grazing. The plaintiff had generally used a semi-trailer on those trips, but he had also used a road train and, on one occasion in August 2007, the B-double. On that occasion he had unloaded cattle into cattle yards at Wapweelah. 4The plaintiff picked up the sheep from Quilpie on 26 November 2008 and drove to Eulo, where he spent the night in the B-double. He deferred his departure from Eulo until about 7am to avoid having the early morning sun in his eyes. At about 9am he telephoned Mr Ellery, the station manager at Wapweelah, to tell him when he expected to arrive. The journey from Eulo to Wapweelah is about 270kms. When he arrived at Wapweelah at about 11 am, it was about 39 degrees. He was not in a hurry. He did not have to be at Toorale Station, 60kms south-west of Bourke, some 200kms away, until daylight the following morning, which gave him six and a half hours of daylight to get there. 5When the plaintiff arrived Mr Ellery opened the gates to the property to permit the B-double to enter and drive along an unsealed road to a clay pan near the homestead. The clay pan is an area of completely bare ground that, over the years, has been scalded through the impact of stock hooves and loss of top soil from the wind. The plaintiff got out of his prime mover and spoke to Mr Ellery about where to unload the sheep. Mr Ellery told him that Mr Ridge was coming to Wapweelah that afternoon to inspect the sheep. The plaintiff suggested unloading the sheep into the yards near the woolshed to make it easier for Mr Ridge to inspect them. Mr Ellery did not disagree with this suggestion. I am satisfied that Mr Ellery was in a position to direct the plaintiff where to unload the sheep, on behalf of Mr Ridge. 6The plaintiff then climbed back into his vehicle, did a U-turn and backed it towards the silver double gates at the entry to the sheep yards, which were about 30 to 30ms away from where he had had the discussion with Mr Ellery. Mr Ellery opened the gates so that the sheep could go directly from the B-double to the yards. This was the first time the plaintiff had unloaded sheep from the B-double at that location. He had, however, also unloaded sheep into those yards when delivering a load in his road train from Moble, at Quilpie to Wapweelah on 3 July 2008. On that occasion he had decoupled the trailers that comprised the road train and put them side by side so that the sheep from each trailer could be unloaded directly from the trailer to the yards. 7However, many of the deliveries the plaintiff had previously undertaken for Mr Ridge involved transporting sheep that Mr Ridge already owned from one of his properties to another, including to or from Wapweelah and Jandra, the property near Bourke where Mr Ridge lived. In these instances the plaintiff was prepared to unload sheep onto the clay pan in the home paddock rather than a yard. However, when the plaintiff knew, as in the present case and in July 2008, that Mr Ridge had purchased the sheep and would want to inspect them, he unloaded them directly into a yard to save Mr Ridge the time and trouble of having to muster them from the clay pan into a yard. Mr Ridge's evidence was that, although he had given no specific instruction to that effect, he wanted the sheep to be unloaded either into the yards or the woolshed on 27 November 2008 so that he could inspect them. 8Much oral evidence was adduced and photographs tendered with a view to establishing that there were other places where the sheep could have been unloaded which would not have required the plaintiff to park his vehicle under the power line. I accept that there were other places where this could have been done but it is not necessary to set out all the other possibilities which the evidence revealed. 9The B-double, which had a total length of 25.6m, comprised a prime mover and two trailers, each of which had three or four decks. There were gates that divided the A-trailer from the B-trailer on each deck. In the position where the plaintiff had parked his vehicle there was a power line that ran directly above the A-trailer, perpendicular to the line of the trailer. There were platforms between the two trailers so that sheep in the A-trailer (nearest to the prime mover) could pass onto the B-trailer and alight from the vehicle from the back of the B-trailer. This gave rise to a different method of unloading from the one the plaintiff had adopted in July 2008 when he had used his road-train. 10After the plaintiff had positioned his vehicle to discharge the sheep into the yards, he climbed up the side of the vehicle to the top deck of the B-trailer to effect the unloading with the assistance of his dogs which got the sheep to descend the races from the decks to the ground. One sheep was reluctant to descend and backed itself into the front corner of the A-trailer. The plaintiff, who was concerned that the sheep might jump over the side of the deck to escape the dogs, went from the B-trailer to the A-trailer and stepped over the bar that divided the top deck of the A-trailer to retrieve the sheep. 11As he did so he came into contact with the power line which was suspended over the A-trailer at a height from the ground of 5.65m and which ran perpendicular to the line of the vehicle. He suffered an electric shock. He was wearing a cotton sun hat with a narrow brim which had a hole scorched into it by the electricity which passed down the left side of his body and through his left foot. He lost consciousness. 12Mr Ellery contacted emergency services. Sergeant Writer, the police officer stationed at Enngonia, attended the scene and found out what had happened from Mr Ellery. Mr Ellery did not give evidence but I infer from Sergeant Writer's record that he was watching Mr Courts unloading the sheep and saw him bend over before he straightened up. Mr Ellery saw him stand upright directly under the overhead power line. Mr Ellery later told Barbara Langhorn, a WorkCover inspector, that "2-3 people have loaded sheep at the exact same spot". I accept that the plaintiff has no recollection of what happened from the time he suffered the electric shock. 13The plaintiff knew, from previous visits and from seeing it on 27 November 2008, that, in addition to the power line from Bourke to the homestead at Wapweelah, there was a power line of about 320ms in length that passed from a pole near the homestead to a pole near the woolshed and which broadly followed the line of the road between those two locations, although it traversed it at one point. The top of the B-double was 4.6ms from the ground. The distance from the ground to the platform on the top deck was 3.87ms. The floor of the trailer from the top deck was 1.78m from the power line. The plaintiff was about 6'1" (187cms) tall and was wearing rubber-soled Redback elastic-sided riding boots with heels of about 2.5cms. He was wearing a relatively close-fitting cotton hat that did not add materially to his height. At the point of impact, the electric line had a clearance from the ground of 5.65m. 14The plaintiff forgot the power line was there when he went to the A-trailer to fetch the sheep because he was focussed on the job. As it was a hot day and the sun was high, the visibility of the line was compromised by the glare of the sun. He was perspiring and, from time to time, used the brim of his hat to wipe away the sweat.

The construction of the electricity line between the homestead and the woolshed 15When Mr Ridge and his aunt bought Wapweelah in 2000, electricity was supplied to the woolshed by an old generator. In September 2001 he sought a quotation from Country Energy to supply electricity to the woolshed. Representatives from Country Energy attended the property. 16By letter dated 10 September 2001 Country Energy provided a quotation "to design and construct the work" for a total project cost of $16,750.14. The work was described as follows: "To erect a high voltage extension from a pole on your property to a proposed site 350 mtrs south-east and locate a new transformer suitable for a 60Amp single phase low voltage supply. This Offer includes approx. 30 mtrs of overhead service." 17The letter also read in part: "When we have received your acceptance of our Offer, we will complete a detailed design, obtain the necessary Approvals, and complete all other works necessary to enable us to schedule and commence construction." 18Mr Ridge accepted the quotation by document dated 23 September 2001. The design document 85991 drawn by Brett Stills of Country Energy dated 1 November 2001 (which appears to be a neater version of an earlier handwritten document) recorded, in respect of the line between the poles, that it was to be 316ms long and carry 19.1kV. Its ground clearance was to be 6ms. The power was to be connected through an overhead power line that ran from a power pole near the homestead, where the station manager lived, to a power pole near the woolshed. It was to run generally along the road but at one point it crossed the road. There was also a line from the power pole near the shed to the shed itself which passed through a transformer.

The state of the power line between the time of its construction and the date of the accident 19The records of Country Energy include a document entitled "Contestable Construction Works in Progress Audit/ Final Inspection Checklist. "J Taylor" was identified as the project manager. Glynn Gray was identified as the auditor. The document, dated 18 June 2002 which related to an audit that commenced on 16 June 2002, recorded in respect of the following items with respect to the conductor that each was "OK": correct clearances, conductor correct tension, correct fittings used and "as per construction manual".

Relevant standards or guidelines for clearance from ground of electrical lines 20The statutory background and any applicable standards are relevant, particularly to any consideration of Country Energy's conduct. The Electricity Supply (Safety Plans) Regulation 1997 (NSW) (the Regulation) were made pursuant to the regulation making power under s 191 of the Electricity Supply Act 1995 (NSW). The Regulation was in force until its repeal from 31 August 2002, shortly after the construction of the relevant power line. Country Energy, as a network operator, was required to lodge safety and operating plans with the Director-General of the Department of Energy: cll 5(1)(a)(i), 6(2). Clause 6(1) of the Regulation relevantly provided that the object of such a plan was to ensure the safe operation of the distribution system. Country Energy was obliged by cl 6(4) of the Regulation to take into account the Electricity Transmission and Distribution Asset Management Code of Practice issued by the Electricity Association of New South Wales (the Code of Practice). If the plan departed from the provisions of the Code of Practice the plan was required to specify what arrangements were in place to ensure an equal or better safety outcome: cl 6(5). 21The version of the Code of Practice that was current at the time the relevant power line was installed at Wapweelah was the Electricity Transmission and Distribution Asset Management Document issued on 20 November 1997. Section 5 of the Code of Practice provided for safety clearances. The clearances in the table were based on a document produced by the Electrical Standards Association of Australia: "Guidelines for Design and Maintenance of Overhead Distribution & Transmission Lines" HB C(b) 1-1999 (the Guideline). 22Section 7 of the Guideline, "Clearances from Ground", provided relevantly as follows: The aerial conductors of cables of an overhead line should be located so that the distances to level or sloping ground in any direction from any position to which any part of such conductors may either sag at Maximum Design Temperature or move as a result of wind pressure, should not be less than the distances specified in Table 7.1 TABLE 7.1 CLEARANCE FROM GROUND, LINES OTHER THAN INSULATED SERVICE LINES Nominal system voltage Distance to ground in any direction U (m) Over the carriageway of roads Over land other than the carriageway of roads Over land which due to its steepness or swampiness is not traversable by vehicles Bare or covered conductor 1000 V < U ≤ 33 kV 6.7 5.5 4.5

NOTES: .... 3. Where the usage of land is such that vehicles of unusual height are likely to pass under an overhead line, the clearances given in this clause may need to be increased. 23The term "Road" is defined by the Guideline to mean a public thoroughfare ordinarily used by motor vehicles. 24The experts (whose evidence is addressed in more detail below) agreed that the Guideline, which had been adopted by Country Energy for its construction of power lines, was applicable. 25Country Energy's Overhead Construction Manual CEM 7097 contained a drawing, CEM 7106.25, which depicted "Minimum Clearance Requirements for NSW". The drawing was said to have had an original issue date of 1 June 2005. No earlier version of the manual or the drawing was in evidence. The Notes to the drawing recorded that the clearances in the drawing were sourced from the Guideline. Note 4 to the drawing said: "Clearances stated are for the worst case of maximum sag and maximum swing." 26The design drawing prepared by Country Energy for the relevant power line, drawing number 85991, referred to a manual. Mr Carmody opined that the power cable clearances are likely to have been the same in the manual that was current at the time of construction of the cable. In these circumstances, where Country Energy did not rely on the absence of the earlier manual (presumably because it was not in a position to provide the version current as at 2002), I infer that the manual which was current at the relevant time, 2002, was not materially different from the one in evidence and contained a drawing that was not materially different from CEM 7106.25. This inference is fortified by the similarities (to which Mr Carmody referred in his second report) between the later manual and the manual headed "North Power", which was another network operator for the relevant time.

Action taken after the accident 27The Department of Energy, Utilities and Sustainability investigated the accident. The only identifiable cause was "Lack of awareness/ training" which was classified as "Human or Systems Issue". Gary Mason, an inspector of WorkCover Authority of New South Wales, visited Wapweelah on 18 March 2009 and issued an Improvement Notice to Mr Ridge. The reason for the notice was recorded as being: "Employees/ Persons may be exposed to a risk of Electrocution or an Electric Shock while operating plant (Trucks) adjacent to the sheep holding pens at Wapweela [sic] due to the proximity of overhead power lines." 28No action was taken by WorkCover against Mr Ridge. Some time after the accident Country Energy placed overhead line markers on the power lines and Mr Ridge placed a warning sign near the road beside the homestead that read: "BEWARE OF OVERHEAD POWER LINES".

Mr Ridge's ownership and occupation of Wapweelah 29Since Mr Ridge purchased Wapweelah for sheep and cattle crazing in 2000, he has had a live-in station manager on the property. Mr Ellery held that position from January 2008. As referred to above Mr Ridge arranged for a power line to be installed that would deliver power to the woolshed. He knew the location of the power line and that it was uninsulated. He bought and sold large quantities of stock and arranged for them to be transported to and from the property. He knew the size and dimensions of the vehicles, such as B-doubles and road trains, that were used to transport such animals. He also knew that the unloading of animals requires a person to climb to the top deck to supervise and control not only the animals that are being unloaded down the race to the ground but also the dogs which commonly assist in the process of unloading. 30Mr Ridge, who knew that the plaintiff would deliver a load of sheep to Wapweelah on 27 November 2008, had arranged to inspect the sheep that afternoon. He knew that Mr Ellery would be there when the sheep were delivered and expected him to open the main gates to the property and consult with the plaintiff about where and how the sheep would be unloaded. He also expected that Mr Ellery would be on hand to help the plaintiff unload the sheep. Mr Ridge knew of the dangers of the power line but did not take any step to warn anyone coming onto the property of such dangers. It was my impression that he considered the presence of the power line and the risks posed by contact with it to be obvious.

The Expert Evidence 31Three electrical engineers prepared a joint report and gave concurrent evidence: Dr Grantham (retained by the plaintiff); Dr Barr (retained by Country Energy) and Mr Carmody (retained by Mr Ridge). The expertise of each was established in the field of electricity, electrical engineering and associated matters. 32The curve of the line followed by a chain or wire strung between two poles is known as a catenary. The vertical distance between the lowest point of the catenary and the height of the pole is the "sag". The vertical distance between the line and the ground is referred to as "ground clearance". Where the ground is level and the poles of equal height, the catenary is at the mid-point. The slackening of the wire due to loss of tension is referred to as "creep" or "stretching". Most of the stretching effect occurs in the first one or two days after tensioning on installation. 33All experts agreed that the Guideline required that the sag has to be controlled in any overhead line design to ensure that ground clearance is maintained across the full span. Conductor (wire) sag, in combination with attachment heights (to the poles) and the ground profile, must provide the specified ground clearances. Although the Guideline does not specify sag requirements directly, controlling and limiting sag is an important part of achieving the specified ground clearance. 34The experts agreed that Mr Courts came within a distance of 1cm of the overhead line and may have actually come into contact with it. They agreed that the Guideline was applicable. They also identified as applicable the WorkCover NSW "Work Near Overhead Power Lines Code of Practice 2006", which provides that for ordinary persons such as Mr Courts the minimum approach distance was 3ms and for "accredited persons" the minimum approach distance was 1.2ms. The corresponding document for the time at which the power line was erected was not in evidence. Mr Ridge recalled that he had given a document of that nature by Country Energy after the power line was constructed in 2002, but his recollection of the document he had been given was not such as to permit him to say whether passages put to him from the later document were included in the document he was given. 35The experts disagreed about the minimum ground clearance required by the Guideline for the power line at Wapweelah. Dr Grantham's view was that it should be 6 or 6.7m. Mr Carmody tended towards the view that it should be 6m. The reasons for their respective opinions are set out below. 36Dr Grantham considered the minimum ground clearance to be either 6ms or 6.7ms on the basis of the note the Guideline set out above. He also referred to an article entitled "Work-related electrical fatalities in Australia 1982-1984", which was published in Scand J Work Environ Health 1992: 18:293-7. The abstract to the article read in part as follows: "Electricity was the fifth highest cause of work-related fatalities in Australia and resulted in 10% of all workplace deaths. . . The greatest number of deaths occurred on farms and non-construction industrial sites, with overhead power lines as the main source of current. Better placement of overhead powerlines, improved worker awareness of electrical hazards, and the use of residual current devices would probably have prevented most of the deaths." 37The article also included the following passage: The number of deaths among farmers in relation to aerial powerlines was almost the same as among linesmen. Aerial powerlines are a well-known hazard in the vicinity of irrigation pipes. However irrigation popes represented only about one-third of the fatalities associated with aerial powerlines on farms, and the results from this study suggest that special attention should also be directed towards the location of aerial powerlines near grain and goods delivery areas and stock yards. 38Dr Grantham opined that the risk of overhead lines on farms, particularly in the vicinity of stockyards, was such that the minimum ground clearance should be the same as that applicable over public roads. He considered that Country Energy ought to have been aware of the risk, including the risk of fatalities referred to in the article, even if it was not shown to be aware of the particular article. 39Mr Carmody had regard to a survey that was conducted by Dr Wicks on 9 January 2013 which revealed that, at the lowest point along the power line, there was a ground clearance of 5.35m. Although inferences could be drawn on the basis of an assumption that the ground clearance at the time of the accident was the same as it was some years later, I do not consider this to be an assumption that can reasonably be made in a case where relatively small differences in measurement may make a substantial difference. 40Both Dr Grantham and Mr Carmody opined that Country Energy could have achieved the appropriate ground clearance for the line either by increasing the height of the poles, or by using an additional pole which would have the effect of reducing sag and moving the pole away from the gate of the sheep pen. 41Mr Carmody did not express a concluded view as to whether the correct clearance height ought to have been 5.5ms, 6ms or 6.7ms. He regarded the choice as a "moot point" in the present case because of relevant formula for determining the height of the pole required to achieve a specified ground clearance at the lowest point of the catenary. He calculated that if the cable had been even 5.5ms above the ground at the lowest ground clearance of the catenary, then the cable location where the plaintiff came into contact with the line would have been about 6ms above the ground and the plaintiff would not have come into contact with it. I accept his evidence and his calculations although, because of my finding that reasonable care required the line to be constructed with a ground clearance of 6ms, his evidence is not decisive on that matter. 42Dr Barr considered that a 5.5m clearance complied with the Guideline in the present case and rejected the proposition that note 3, which called for judgment to be made about whether there ought be a greater clearance, applied. He said that the expression "unusual" vehicles in the context of Note 3 to the Guideline does not apply to vehicles permitted on public roadways and that it typically applies to vehicles to be found on mine sites. I do not accept his evidence on this matter. Indeed, elsewhere in his evidence he commented on the measured height of the plaintiff's front trailer (the A-trailer) and noted that it could only travel on certain roads and required a special permit. He said in his report: "In my view the exceptional height of the B double trailers presented a special hazard when working and operating near overhead power lines . . ." [Emphasis added.] 43Dr Barr, in the course of concurrent evidence, explained his understanding of the reason for the differential heights in the Guideline as follows (between 6.7 on a public road and 5.5 on another carriageway): "It is to do with the frequency. The public roads are busy places where these vehicles are passing under all the time. When we go off-road into these - these rural areas, the frequency of traffic is so much less, the risk is less because of the vehicle activity and that is why the guideline is written in the way it is." 44I do not accept that frequency is the basis for the distinction. Note 3 does not speak in terms of frequency except in so far as it is incorporated in the word "likely" in the phrase "vehicles of unusual height are likely to pass". In this context I do not infer that the purpose of the Guideline is to engage in an exercise akin to Russian Roulette, as Dr Barr's analysis of its rationale suggests. Rather, I discern its evident purpose to be to confine the greater (and therefore more expensive) requirement of a ground clearance of 6.7m to land where it was actually required, rather than to adopt it universally for land where there would be little, if any, prospect of high vehicles going under the line. 45The experts agreed in the course of concurrent evidence that if the line had had a ground clearance of 6ms at the site at which the plaintiff came into contact with it, the accident would not have happened.

Whether Country Energy owed a duty of care to the plaintiff 46Mr Windsor SC, who appeared with Mr Kettle for the First Defendant, submitted that no duty was owed by Country Energy to the plaintiff because he was not acting in accordance with the dictates of common sense and was not exercising reasonable care for his own safety. Mr Windsor referred to statements in the authorities to the effect that a duty ought be formulated by reference to users exercising reasonable care for their own safety: see, for example, Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29; 206 CLR 512 at [163] per Gaudron, McHugh and Gummow JJ. These statements are particularly apposite when considering the duty owed by a public authority to persons using its roadways and footpaths. 47I do not consider these statements to apply to the present case. The possibility that someone will suffer harm as a result of his or her own negligence, though relevant to the standard of care owed, does not generally destroy the duty: Stephens v Giovenco [2011] NSWCA 53 at [6] per Allsop P; Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 at 308-309; Bus v Sydney City Council (1989) 167 CLR 78 at 90-91; McLean v Tedman (1984) 155 CLR 306 at 311 and 313. It may be accepted that many people who come into contact with power lines are not taking reasonable care for their own safety since any reasonable person would do all that he or she could to avoid any contact with such lines. But that is not to say that there is no duty on the part of the public authority to take the precaution of constructing such lines with a ground clearance that is reasonable in the circumstances. 48Mr Windsor also relied on Rundle v State Rail Authority of New South Wales [2002] NSWCA 354 (Rundle) in which the respondent was found not to be liable for injuries sustained by the appellant when he was spraying graffiti on the roof of the moving carriage of a train. In the present case the plaintiff was performing an orthodox task associated with the expected use of the property: namely unloading sheep from a large, high vehicle. What created the danger was his parking the vehicle under a power line that did not have sufficient clearance from the ground to prevent its contact with him when upright on the top deck. The plaintiff, in doing so, failed to take reasonable care for his own safety but in my view Country Energy owed him a duty of care. I do not find the comparison between Rundle and the instant case helpful. 49It was not suggested that legislation under which Country Energy operated was inconsistent with the recognition of a common law duty of care in the present case: cf. Crimmins v Stevedoring Committee (1999) 200 CLR 1 (Crimmins). 50Mr Windsor also contended that there was no duty because Country Energy had no control over what would happen at Wapweelah, and in particular, how sheep would be unloaded. All it did was install the line. He distinguished the present case from Crimmins in which the stevedoring authority was found to owe a duty of care to the workers over whom it had control when it made arrangements to allocate such workers to particular stevedoring operations. Crimmins was concerned with an entirely different situation where the measure of control was found to give rise to a duty. In the present case, the duty arises because of the risk of harm posed by the presence of the uninsulated power line at Wapweelah. Because of that risk, Country Energy owed a duty to take reasonable care in its design and installation, over which it had, relevantly, control. That it did not control the dynamic activities on the land thereafter does not destroy the duty. 51Power lines, while of considerable social utility, pose a significant risk of harm to persons if they come in contact with them. The risk of harm is particularly significant when the lines are high-voltage and uninsulated, such as the 19.1kV line in the present case. For this reason, Country Energy, which was responsible for designing and installing such lines in country areas of New South Wales, owed a duty to take reasonable care in their design and construction so as to avoid injury to persons caused by contact with the line for the expected life of the power line. Reasonable precautions included, in my view, designing and constructing the line so that it had sufficient clearance from the ground such that neither persons nor vehicles would come into contact with it. What ground clearance is reasonable depends on the actual or foreseeable use of the land beneath the line. The Guidelines referred to above appear to me to have been drafted with these concepts (separation between the line and people and vehicles for the purposes of safety) in mind. They identify appropriate clearances at various locations. Accordingly, on public roads the clearance is higher, 6.7ms, because of the range of vehicles that can be expected to use public roads. Vehicles, such as the plaintiff's B-double, which are prohibited because of their height from travelling along some roads, travel on country highways, particularly those in Western New South Wales where the land comprises, in the main, large grazing properties. The Guidelines also give guidance where a judgment is to be called for by reference to particular attributes, or expected use, of land. Note 3 to Table 7.1 of the Guideline is an example of the latter.

Foreseeability 52Mr Windsor submitted that the risk of injury to a person unloading animals from the top deck of a B-double was not foreseeable by Country Energy when it installed the line. He sought to make much of the particular place where the vehicle was parked, which was not on the road itself, and relied on the fact that the silver gates were not there at the time the power line was constructed (although there were, according to Mr Ridge, gates in the same position that were replaced by the silver gates). Mr Windsor submitted that, as Mr Ridge had not anticipated that livestock would be off-loaded at that location, it would not be reasonable to expect that Country Energy would anticipate it. 53I do not accept this submission. Foreseeability is not to be assessed in hindsight. Nor is it to be assessed by reference to the degree of particularity for which Mr Windsor contended: Chapman v Hearse [1961] HCA 46; 106 CLR 112 at 120 per Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ; Mt Isa Mines v Pusey (1970) 125 CLR 383 at 390 per Barwick CJ. To require Country Energy to envisage that a high vehicle will park at that precise location to unload animals before the risk of harm could be found to be foreseeable would be to demand a level of prescience which is greater than that required by the common law. All that Country Energy had to foresee was that high vehicles would traverse the property in the vicinity of the power line and that, for whatever reason, a person might stand on the top deck of the vehicle. Furthermore I infer that the designer did in fact foresee that some adjustment was required to the minimum ground clearance of 5.5m and could be expected to have anticipated the matters referred to above in the formulation of the duty.

The content of the duty and the relevance and application of the Guideline 54The content of the duty is, in my view, reflected by the Guideline which specifies ground clearance with the evident purpose of eliminating the risk of contact by normal use of the ground under the line. I take the Guideline to constitute an assessment by electricity authorities, including Country Energy, of what reasonable care requires. Because high vehicles can and do lawfully travel along public roads the clearance for lines along such roads is set at a level which will prevent contact between such vehicles and the lines. Where the land does not amount to a public road but can be traversed by vehicles that travel along public roads, a judgment is, according to the Guideline, called for. Although the journal article referred to by Dr Grantham had limitations, which were expressed in the article, it constituted a useful reminder of the substantial risk of harm occasioned when persons, particularly those working on rural properties, are working in the vicinity of powerlines. I infer that Country Energy was well aware of such risks, particularly on those properties, it being the electricity authority for country New South Wales. 55Mr Windsor submitted that it was implicit in 2000 that the type of vehicles to which the table in the Guideline related were vehicles with a maximum height of 4.6ms and that the reference to "vehicles of unusual height" in the note to the Guideline would, accordingly, not be "vehicles of unusual height". He contended that, in these circumstances, a ground clearance of 5.65m was ample to allow such vehicles to pass under the line and accordingly there was no negligence. I do not accept this submission, in part because the stipulation of 6m in the design drawing would appear to involve the judgment called for by the note, and have been exercised on the basis that just such vehicles would be likely to pass under an overhead line on the property. Furthermore, I accept the evidence of Dr Grantham that a B-double, or other vehicle of the height of 4.6m would be regarded as being of "unusual height" for the purposes of note three in the Guideline. I do not accept Dr Barr's evidence that the expression "unusual" vehicles in this context does not apply to those permitted on public roadways or that it typically applies to mine sites. 56Mr Windsor submitted that, since the plaintiff tendered the 2002 audit document referred to above as a business record, he ought be taken to accept its accuracy and that, accordingly, I ought find that the power line was the "correct clearance" from the ground. It is not clear whether the "correct clearance" said to have been achieved was 6m, in accordance with the approved design, or 5.5m in accordance with the Guideline. Furthermore there is no evidence that an actual measurement was taken in the course of the audit, or, if so, what the measurement was. The detail of the document does not permit me to draw the inference as to the ground clearance as at 18 June 2002. Nor does it permit me to draw the inference that it was constructed in accordance with the design drawing, or indeed any other particular standard. I would not draw that inference absent evidence from Mr Gray or Mr Taylor. I infer, since they were not called, that their evidence would not have assisted the case of Country Energy: Jones v Dunkel [1959] HCA 8; 101 CLR 298. All I would draw from the document is that there was no visible problem with the power line that could be detected absent measurement or survey. 57Mr Windsor also submitted that the power line was relevantly constructed in accordance with the Guideline because, at the point of impact, its ground clearance was 5.65m. He said that it was not to the point that the ground clearance happened to be 5.35m some 24m south east of that point, at a location between the track and a stock yard fence. I do not accept this submission since Country Energy itself had applied the Guideline to set a design clearance at 6m and therefore can be taken to have made the judgment in accordance with the note that additional ground clearance was required. 58Mr Windsor contended further that the design parameter's allowance for line clearance of 6m does not mean that the line should, or must, have a clearance of 6m. Rather, he submitted that what the designer was doing was to recognise that the ground profile will change across a span as land is never exactly flat and that the direct aim of specifying 6m was to ensure a minimum clearance of 5.5m. Dr Barr provided some support for this hypothesis by deposing that designers "normally allow" an additional 0.5-1m of ground clearance to cover small undulations. Indeed he said that he and his staff had often done so when designing lines. However, there is no evidence that this is what occurred in the present case. I am not prepared to accept this submission without evidence from Country Energy as to the thought processes of its designer, or the person who approved the design. If evidence to that effect had been given, it would have assisted Country Energy's case. The inference I draw is that if such persons had been called their evidence would not have assisted Country Energy's case. 59In my view, the duty of reasonable care owed by Country Energy to persons such as the plaintiff required it to erect the line at a height of at least 6ms, at which such persons using the property for the purposes which were in reasonable contemplation for such a property would not come into contact with it for the following reasons: (1)the level generally specified by the Guideline for land other than public roads was 5.5ms; (2)the obvious and foreseeable use of the properties in the part of New South Wales where Wapweelah is situated was as large-scale grazing land which as a matter of almost nigh inevitability requires the use of large, high vehicles; (3)there is no particular reason to distinguish the height of power lines on the roads in those areas from the height of power lines on properties in those areas since the highest vehicles that traverse the roads can be expected to be engaged in deliveries of stock to such properties; (4)inspection of the property would have shown that there were wheel tracks along the dirt road along the path which the power line generally followed and that it could be expected that that road was used by heavy vehicles; and (5)Country Energy, following consultation with Mr Ridge and inspection of the property, designed the line to have a ground clearance of 6 m. 60A reasonable person in the position of Country Energy would have taken that precaution because of the following three matters (each of which I am obliged to consider under s 5B(2) of the Civil Liability Act 2002 (NSW)). The first matter is the likely seriousness of the harm (death by electrocution or serious electric shock). The second matter is the burden of taking such precautions, which, having regard to the design of the line by Country Energy which specified a ground clearance of 6m, I do not consider to be onerous. The third matter is the social utility of the provision of electricity, being the activity that created the risk of harm, including on country properties to facilitate their use as productive producers of primary produce. 61I am also obliged to consider, for the purposes of s 5B(2)(a) of the Civil Liability Act the probability that harm would occur if care were not taken. Contact between a person or a vehicle and an uninsulated power line can be fatal, or cause serious injury, if there is direct contact between the line and a person or if the person is in the vehicle and relevantly becomes a conductor of the electricity in the line. Sufficient ground clearances are the usual means of providing for separation between persons and vehicles on the one hand and lines on the other. If ground clearances are not sufficient, then there is a prospect of harm if someone in a high vehicle passes under the line. The prospect of harm is greater if the load of the vehicle has the effect of making it higher, or if a person or animal is upright above the height of the vehicle. The probability of an incident such as occurred in the present case might be regarded as low in an overall sense, simply because of the number of factors that brought it about, some of which were a matter of chance (for example that the relevant sheep was in the corner of the A-trailer rather than the B-trailer or that the plaintiff was 187cms tall). However, the same might be said of any insufficient ground clearance where the traffic underneath is likely to be relatively infrequent. In my view, the risk of harm required the reasonable precautions outlined above to be taken, even though the probability that harm would occur if care were not taken was relatively low. 62In the absence of evidence from Country Energy to the contrary, I take the design ground clearance referred to in (5) above to be Country Energy's proper assessment of the minimum reasonable ground clearance for this site, having regard to the land use and the matters referred to in (1) to (4) above. It may be that reasonable care required the ground clearance to be 6.7ms having regard to factors (2), (3) and (4) above. But it is not necessary to decide this question since the plaintiff put his case, and Mr Ridge put his claim for contribution, on the basis, which was accepted by all three experts in concurrent evidence, that the accident would not have happened if the ground clearance had been 6ms at that location. 63I note that Mr Carmody considered that even if the ground clearance at the lowest point of the catenary had only been 5.5ms, this would have been enough to avoid the accident at the point at which it was located. Although this observation may be sufficient to deal with the instant case, I am satisfied that reasonable care required greater than 5.5m ground clearance for this power line. 64This formulation of the duty does not include any element of "reliance" on the part of the plaintiff that a statutory function will be exercised for his particular benefit: Romeo v Conservation Commission (NT) [1998] HCA 5; 192 CLR 431 at [20] per Brennan J. 65Country Energy's failure to take the reasonable precaution of constructing the line so as to give a ground clearance in accordance with its design of 6ms was negligent and caused an immediate risk of harm to persons passing under the line (Cf. Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 at [49]). That the risk of harm did not ensue for a period of eight years following its construction was a matter of chance and neither undermines the risk of harm, nor its seriousness. 66In so far as any case was pressed against Country Energy that it should have erected an additional pole or moved the pole that was there away from the gate to the sheep pen, I do not consider that case has been made out. Country Energy installs power lines for the long-term and cannot be expected to assume, either that gates or fences will be moved, or that they will not be. Although there was evidence that established that the double silver gates through which the sheep were unloaded on the day of the incident were not functional at the time the power line was installed, I do not consider this to be a material factor. 67Although it was suggested that such duty required it to position the line at a distance from the dirt road, I do not consider that reasonable care required it, since the line of such dirt roads can change over the years, although it had not changed in the present case.

Causation 68Mr Windsor raised in cross-examination, on the basis of Dr Barr's report, possible explanations for the ground clearance of the wire at the place of the incident being 5.65m, including weather, wind, use of a grader and movement of the power lines since the last inspection in 2005. The expert evidence was that the greatest creep or stretch (sometimes referred to as "initial sag") occurs in the first couple of days after installation. Mr Carmody said that given a six month period the line would have dropped to the lowest point. I am not satisfied that the ground clearance of the line was 5.65m for any other reason than that it had been installed with a ground clearance of about that distance but certainly less than 6m, although the latter had been specified in the design. For the reasons given above this was negligent. 69I find, on the basis of the experts' unanimous agreement that the accident would not have happened if the power line had had a ground clearance at the relevant location of 6m, that Country Energy's negligence was a cause of the accident. 70Although the plaintiff also propounded a case based on alleged failure to warn, I am not satisfied that there was a duty to warn. The presence of the power line was obvious from the ground. Furthermore, the plaintiff himself was aware of it, apart from at the critical moment when he was distracted. I am not satisfied that reasonable care required Country Energy to put in overhead markers or signs. Since the accident Country Energy has put in markers on the electricity line. Their placement does not of itself affect liability or constitute an admission of liability in connection with the risk: s 5C(c) of the Civil Liability Act. Given that the plaintiff knew the line was there when he parked his truck underneath it, I do not think that markers would have made any difference to his selection of that position. It is a matter of conjecture whether, had they been put in earlier, they would have prevented the accident but I am not satisfied that they would have prevented it.

The liability of Mr Ridge 71Mr Cavanagh SC, who appeared with Ms Dinkha on behalf of Mr Ridge, accepted that Mr Ridge owed a duty to the plaintiff but submitted that he had no duty to supervise the work of an independent contractor, such as the plaintiff. Nor did he have a duty to warn the plaintiff of a risk that was obvious: s 5F, 5G and 5H of the Civil Liability Act. He contended further that even if there had been a duty to warn, the only operative effect of such duty was if a warning had been given when the plaintiff moved from the B-trailer to the A-trailer, since at all earlier times, the plaintiff was aware of the presence of the power line. He said that to impose such a duty on Mr Ridge (through Mr Ellery) was tantamount to imposing a duty on the part of Mr Ridge to supervise the work and that it was not reasonable to impose such a duty in all the circumstances. I accept Mr Cavanagh's submission that there was no duty on the part of Mr Ridge to supervise the plaintiff while he was unloading the sheep (although Mr Ellery in fact watched him perform the task). Any duty to warn became factually irrelevant, except in the moments immediately before the incident, because Mr Courts was aware of the presence and location of the line at earlier times. However, I consider that Mr Ridge breached the duty he owed to the plaintiff as occupier for the reasons set out below. 72Mr Ridge, as occupier of Wapweelah, who had arranged for sheep to be delivered to his property, owed a duty to take reasonable care for the safety of the plaintiff when he came to the property for that purpose. That duty extended not only to the static condition of the property but also to the way in which the sheep to be unloaded, in so far as the features of the property, including the layout of the yards and the position of the power line, affected it. The duty required him to take reasonable care not to expose Mr Courts to an unreasonable risk of injury: Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19; 221 CLR 234. The circumstances must be viewed from the perspective of the reasonable defendant without the benefit of hindsight: see, for example, Mulligan v Coffs Harbour City Council [2005] HCA 63; 223 CLR 486 at [50]-[53] (Hayne J). 73Mr Ridge was aware of the presence of the silver gates near the woolshed and that the power line, which generally followed the line of the road, was proximate to those gates. A reasonable response of a person in his position would be to make sure that the gates were not used as the opening to the yards through which deliveries of sheep were unloaded because of the proximity of the power line, the height of the vehicles that commonly delivered such animals and the need for those delivering the sheep, or assisting with the delivery, to climb to the top deck of such vehicles. 74The unreasonable risk of injury was posed by the potential contact between an insulated electric wire and a person. The exercise of reasonable care by Mr Ridge required him to have regard to the possibility that some entrants may be careless of their own safety (see generally Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 at 246-247; Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 at [25]-[27]), if not for any other reason, then because they were distracted by, or engrossed in, the task in hand. As explained in the joint judgment in Brodie v Singleton Shire Council (2001) 206 CLR 512, at [163], "some allowance must be made for inadvertence". I do not consider that the existence of the duty was affected by the fact that the electrical wire was visible to anyone who looked for it. Indeed, there are features of the lay-out of the yards and the position of the power line that are relevant to this question. The first is that people at the height of the power line (such as those unloading animals from high vehicles) may have various demands on their attention. The second is that the extent to which it was obvious depended on the conditions: it might be obtrusive, if not an eyesore, to someone who was looking up at it with the sun behind them; it might be well-nigh invisible on an overcast day, or to someone engrossed in work or distracted by the glare of the sun. 75The line in question, being relatively high, may well have provided no risk to persons other than those standing on high vehicles unloading animals. But for those people, including the plaintiff, the position of the line and the nature of the work was such as to impose a duty of care on Mr Ridge to take reasonable precautions not to expose the plaintiff, or others who came onto the land, to the risk of electric shock resulting from contact with the line. Although it was the plaintiff who suggested unloading the sheep through the silver gates, Mr Ridge, through his agent Mr Ellery, had a duty, as occupier, to instruct the plaintiff not to park there to unload the sheep. The convenience to Mr Ridge of having the sheep in those yards was outweighed by the risk of harm posed by the power line. Mr Cavanagh, on behalf of Mr Ridge, submitted that Mr Ridge's duty did not extend to a duty to take an alternative course of action which would have avoided the harm, since Mr Ridge was not obliged to do anything at all: Shoalhaven City Council v Pender [2013] NSWCA 210 at [51]-[54]. For the reasons given above, I do not accept that an occupier in Mr Ridge's position, acting reasonably, could have done nothing with respect to the delivery, having regard to the duty he owed to persons who came onto his property, including those, such as the plaintiff, who were delivering sheep. 76I do not consider that Mr Ellery, on behalf of Mr Ridge, had a duty to supervise the unloading, beyond the discussion about where the vehicle would be parked and into which paddock the sheep would be unloaded, since the plaintiff had been engaged to perform that task. However, I consider that reasonable care would require an occupier taking delivery of 520 sheep to give some instruction as to where, on a property of that size, the sheep ought be placed when unloaded. Mr Ridge, as occupier, had a duty to take reasonable precautions when determining such a place, so as not to expose the plaintiff to harm. I regard the position as a fortiori in circumstances where Mr Ellery was on the property, close at hand at the relevant time, in a position to control the plaintiff's location and was consulted on the topic. He was in breach of that duty by not controlling the plaintiff's selection of location, which Mr Ridge ought reasonably to have foreseen would expose him to an unreasonable risk of harm because of the presence of the power line above the place where the plaintiff was proposing to park, and did in fact park, his vehicle. 77This was the relevant act of negligence. I am satisfied that Mr Ridge was in breach of his duty as an occupier by not intervening to instruct the plaintiff, through Mr Ellery, not to unload the sheep at a location where any part of the truck would be under the power line. Mr Ridge's negligence was a material cause of the plaintiff's accident. He is accordingly liable to the plaintiff. 78I do not accept that Mr Ridge had a duty to arrange his yards and gates by reference to the presence of the power line, since the only relevant danger posed by the power line (giving rise to a duty to take reasonable care) was when livestock were being delivered by high vehicles to his property. Nor do I accept that Mr Ridge had any duty with respect to the installation of the power line by Country Energy in 2002. The installation of power lines requires specialist knowledge and expertise which, relevantly, only Country Energy possessed. He was not required to second-guess Country Energy or do anything but assume that it knew what it was doing. He was not obliged to warn of the presence of the line.

Contributory negligence 79The same principles for determining whether a person has been negligent apply to the determination whether a person has been contributorily negligent in failing to take precautions against the risk of that harm: s 5R of the Civil Liability Act. The standard of care required is that of a reasonable person in the position of that person and the matter is to be determined by reference to what that person knew or ought to have known at that time. 80Mr Blacket SC, who appeared with Mr Regattieri on behalf of the plaintiff, submitted that only a small reduction on the basis of contributory negligence ought be made to the plaintiff's damages because his negligence was one of momentary inadvertence in that he temporarily forgot about the presence of the power line when he went to retrieve the sheep. Mr Blacket relied on Pollard v Baulderstone Hornibrook Engineering Pty Limited [2008] NSWCA 99 and in particular [15] and [16] and read extensively from Glass, McHugh and Douglas, The Liability of Employers in Damages for Personal Injury (2nd ed 1979, Law Book Co) to the effect that inadvertence in performing work need not give rise to any reduction. I reject Mr Blacket's submission, which, in my view, fails to take account of the fact that the plaintiff, who was not an employee, chose to park his vehicle under the power line. He, together with Mr Ellery, created the system of work. Furthermore, the law of torts is particularly and appropriately solicitous of employees, to whom a higher standard of care is required of their employers and a different view is taken of contributory negligence in the context of that relationship than elsewhere. 81The plaintiff either knew or ought to have known, of the presence of the power line above his vehicle when he decided to park there. He knew generally of the presence of the power line and if he did not actually know that it ran perpendicular to the line of his B-double he ought to have known, and would have known if he had thought about it. He appreciated the risk of electric shock posed by power lines. He knew that the height of his vehicle was not significantly lower than the ground clearance of the power line and he would have, had he thought about it, realised that had he stood on top of his vehicle there was a substantial risk of his being close to the height of the line. A reasonable person in the position of the plaintiff would also have realised that he would not be paying any particular attention to the presence and height of the power line when on the upper deck dealing with sheep and dogs. He would be likely to be looking downwards; there might be glare from the sun; and the unpredictability of sheep would make it unlikely that he would have time for considered decisions about where best to move, when he was actually on top of the upper deck. 82Mr Windsor submitted: "The conduct of the experienced Mr Courts was that of a person making a deliberate, informed and calculated decision with full knowledge and an absence of reasonable care for his own safety. It was not a situation of inadvertence. It was not a situation where his conduct might be excused by tiredness. He made the decision to undertake the work in the manner he did in circumstances where he was not exercising reasonable care for his own safety. His conduct was contrary to the dictates of common sense in a person of his knowledge or experience." 83It may be that the difference between Mr Windsor's submission, the terms of which I do not adopt, and my reasons, is one of nuance. However, I am satisfied that a reasonable person in the plaintiff's position would not have parked his B-double under the wire. I accept that his reasons for parking there were altruistic since he considered that it would be convenient for Mr Ridge to have the sheep in the yards near the woolshed when he came to inspect them. But for the presence of the power line, this may well have been the best place to unload the sheep, as far as Mr Ridge's convenience was concerned. But the plaintiff had an obligation to look after his own safety and he failed to take reasonable care to do so. I find that he was contributorily negligent by parking his truck under the power line. Having regard to the risk of harm posed by the power line, the contributory negligence was of a high order.

Apportionment 84The risk of harm arose from the following three factors: first, the insufficient ground clearance of the power line; secondly, the parking of the B-double under the power line; and, thirdly, the fact that the plaintiff did not avoid the line when retrieving the sheep. The first risk was created by Country Energy; the second risk was created by the conduct of the plaintiff and Mr Ridge, through his agent Mr Ellery; and the third risk was created by the plaintiff's momentary inadvertence and the conduct of a sheep. The negligence of Country Energy in installing a power line with insufficient ground clearance would not have resulted in injury if Mr Ellery had told the plaintiff to park his vehicle some distance away from the power line. Had the recalcitrant sheep been in the B-trailer not the A-trailer, the accident would not have happened. Had the plaintiff been thinking of himself rather than of Mr Ridge, he would have parked the vehicle well clear of the power line so as to ensure no risk of contact at a time when he was otherwise distracted and would not be in a good position to catch a sheep and avoid a power line. Had the plaintiff been paying attention to the power line which he knew to be there, he would have avoided it rather than climbing into the A-trailer to get the sheep. 85I assess the plaintiff's contributory negligence at 40%. I consider that he ought bear a significant responsibility for the incident because of the position in which he chose to park his vehicle which created the risk that he would come into contact with the line when he was atop the vehicle dealing with the sheep. He could not (and did not) assume that the line had been designed to enable him to perform that activity underneath it, without risk of contact. 86I assess the liability of Country Energy at 40%. Although its negligence in constructing the power line effectively required another's negligence before harm would ensue, the risk of harm was such that it had a duty to take reasonable precautions to prevent the contact between persons and vehicles and the line. It failed to construct the line in accordance with its own design. It exposed persons such as the plaintiff, who were using high vehicles on the property where the line was constructed, to an unreasonable risk of injury, when it could, by constructing the line in accordance with its own design, have removed the risk of contact altogether. 87Mr Ridge's liability ought, in my view, be assessed at 20%. By acquiescing in the plaintiff's parking his B-double under the power line so that the sheep could be unloaded into the yards through the silver gates, he, too, was an author of the dangerous situation which carried a substantial risk of harm which the respective positions of the vehicle and the line posed. Had Mr Ellery taken reasonable precautions on behalf of Mr Ridge he would have required the plaintiff to park elsewhere. He bears a lesser portion of responsibility because he is not nearly as much to blame as the plaintiff himself and Country Energy. 88It follows that, after deduction of 40% for the plaintiff's contributory negligence, Country Energy ought bear responsibility for two-thirds of the plaintiff's damages, and Mr Ridge ought bear responsibility for the remaining third.

Damages 89The plaintiff was born on 11 September 1965. He was 43 when the accident occurred and 49 at the date of trial. As a 49 year old male he has a life expectancy of 36.59 years. The relevant 5% multiplier for this period is 889.2. 90The plaintiff is the only surviving child of Patricia (known as Poppy) and Leonard (known as Mick) Courts. He is left-handed. In 1972 the family moved to Karalee, which is about 160kms from Bourke, when the plaintiff's mother purchased the property. The plaintiff went to boarding school in Brewarrina, then in Bourke and Bowral for his primary education, and to Sydney for his secondary education. He left school in 1983 after obtaining the Higher School Certificate. He went to Longreach Agricultural College for two years and obtained a certificate in animal production. He obtained his private pilot's licence in 1985. Later, he obtained a multiple combination driver's licence which permits him to drive heavy vehicles including road trains. In 1985 his mother purchased another property, Nala. The total area of the two properties was 46,000 acres. 91On 10 April 1992 he married Catherine Courts. The plaintiff's parents gave the couple a residence at Karalee in which to reside. The plaintiff and his wife have four children: twins, Henry and Jack, who were born in1995; Hugh, who was born on 1997 and Emma, who was born on 2000. 92Before the accident the plaintiff used to enjoy tennis, motor bike riding, water skiing and snow skiing. He was, and is, a volunteer member of the local Bush Fire Brigade. He is Vice-President of the Enngonia Racing Club. 93The injuries sustained in the incident were traumatic, shocking, painful and ultimately debilitating. The plaintiff was, at the time of the incident, an active, fit man who worked industriously to support his family and to continue to work on and manage Karalee with his ageing parents. He had every expectation that he would be able to work into his seventies and, in due course, that at least one of his children would continue the family's farming tradition. He gained off-farm income by working as a truck driver. 94The plaintiff's bravery and stoicism ought not lead to any moderation of general damages. The incident itself caused excruciating pain. Because it occurred in a very remote location it took a considerable time for the ambulance to arrive at Wapweelah and transport him to Bourke District Hospital. From there he was flown to Royal North Shore Hospital where he remained from 27 November 2008 until 22 December 2008. He underwent debridement and skin graft to his scalp, multiple debridements of his left foot, amputation of two toes and attempted skin graft to his left foot. He had to remain in Sydney until his re-admission to Royal North Shore Hospital on 3 March 2009, because he had to attend the hospital to have his dressings changed every few days. These changes of dressing caused excruciating pain. The plaintiff hired a motorised scooter so that he could go to and from the hospital. He was hospitalised for a week from 3 to 10 March 2009 for further surgery that involved a skin graft to his left foot. Once again, he was discharged on crutches. He returned home to Karalee to recuperate. He required significant assistance from his wife with personal care during this period. 95He had further surgery to his left foot at Royal North Shore in mid- 2009 and was an in-patient for a week. 96The period of almost a year between the incident and the amputation of his left leg must have been particularly difficult because of the dread and apprehension which I infer he suffered at the prospect that he might need an amputation of his left leg. His concern about his physical ability after that amputation caused him considerable suffering. The plaintiff was again hospitalised at North Shore Private Hospital from 8 until 15 November 2009 to undergo a below-knee amputation of his left leg, which was performed by Dr Ellis. He continues to experience phantom pain below his left knee. Following his discharge he went to Hirondelle Private Hospital from 15 November to 10 December 2009 to for rehabilitation and physiotherapy. On his discharge his wife drove him home to Karalee. 97He had to be hospitalised again at Royal North Shore Hospital from 22 to 29 March 2010 for debridement of his scalp wound because he had developed osteomyelitis in his skull. He was receiving antibiotics intravenously but the plaintiff decided to take the antibiotics in tablet form so that he could return home to Karalee. 98The plaintiff's rehabilitation, though painful and arduous, was relatively successful. He has resumed many of the activities in which he formerly engaged. He went back to work (as set out in more detail below). He has even attempted, with some success, to water ski on his prosthesis. Nonetheless his strength and endurance have been compromised from the loss of his left leg and his working life will be cut short. He has difficulty in driving manual vehicles and needed to purchase a truck with automatic transmission. He has difficulty climbing in and out of the cabin of his truck and up and down onto truck crates and decks. It is more difficult for him to carry out repairs or maintenance to the prime mover or trailer and it is difficult for him to change tyres on such vehicles, in particular because of the difficulty he has in positioning the jack to change the tyre. He can no longer safely ride two-wheel motor cycles. He has difficulty catching sheep and goats. 99I accept that his injuries were a factor in the family deciding to sell Karalee. I am not satisfied that they were, in the end, the deciding factor but, had he been able-bodied, he may have been in a better position to come to an arrangement with his parents to keep the property, since this was his wish. The times at which he displayed emotion in the witness box were times at which he was being asked either about the sale of Karalee or about paying for his children's secondary education at boarding school in Sydney. I am satisfied that the injuries sustained at Wapweelah caused him to lose the opportunity to come to an arrangement with his parents to retain Karalee and that the loss of Karalee has caused him considerable anguish. 100The injuries to his scalp must also be taken into account in assessing general damages. As a result of the incident a significant portion of his scalp has been denuded of hair which will not grow back. His hair is otherwise dark and thick, which is not common for a man of his age. Because the denuded area does not correspond with the expected areas of baldness, it attracts attention. When the plaintiff is with people he knows, he does not wear a hat. When he is going about his daily work he wears a hat. He is in an environment where it is common for men to wear hats outside, but it is expected that they will remove them, including when inside. When he is in a familiar environment with people he knows, he is untroubled by removing his hat, but at other times, he is apprehensive because he realises that it attracts attention. Children, who are less likely to have acquired the tact which is generally associated with age and maturity, tend to ask questions and make comments that are, often unwittingly, hurtful. When the plaintiff is required to attend a formal occasion, such as a wedding or funeral, he wears a wig, which he attaches to his scalp with Velcro. He cannot wear it for long because it causes ulcers to form on his scalp. 101In February 2014 he sustained an injury to his right knee when rising from a crouched position. He had an arthroscopy in May 2014 at Dubbo Hospital. Because of the below-knee amputation of his left leg, any problem with his right knee is of greater significance.

Non-economic loss 102The plaintiff has suffered very considerable pain and trauma arising from the accident. He has undergone several operations, of which the most significant was the below-knee amputation of his left leg. He will have to live with the disfigurements and disabilities set out above for the rest of his life. He has lost much and suffered much. Nonetheless he has made a remarkable recovery and has regained, to a considerable degree, his pre-accident capacity. I assess his non-economic loss pursuant to s 16 of the Civil Liability Act at 50% of $572,200, being $286,100.

Past economic loss: the facts 103At the time of the accident the plaintiff was self-employed. He was a member of the following partnerships, each of which was formed by oral agreement: (1)A grazing and livestock partnership with his parents at Karalee, trading as LG, PK & HG Courts (the three-way partnership); (2)A trucking and livestock trading business (including goats) with his parents and his wife trading as HG, CM, PK & LG Courts (the four-way partnership); and (3)A livestock trading business commission with his wife at Karalee, trading as HG & CM Courts which commenced on 1 July 1995, which included selling goats on behalf of others in return for commission (the two-way partnership). 104Prior to the accident, the trucking business had a prime mover and three trailers, one shorter and the other two of about 12ms in length. When the prime mover is connected to a shorter trailer and a longer trailer, it is referred to as a B-double. The length of the plaintiff's B-double was 25.6ms. When the prime mover is connected to the two longer trailers (which are joined to each other by a dolly underneath the second trailer) it comprises a road train. Vehicles of the size of the road train are only permitted to travel on all roads west of the Newell Highway. 105In February 2009 the plaintiff sold his prime mover, which had manual transmission. In August 2009, Justin Roberts, a family friend of the plaintiff who had his own prime mover, agreed to work as a subcontractor in the trucking business. Mr Roberts paid the costs associated with his prime mover; the balance of the costs was paid by the four-way partnership. Originally Mr Roberts was paid 80% of the gross income, but after the first year this was reduced to 78%. The balance was retained by the four-way partnership. Much of the work involved transporting goats. 106I accept Mr Roberts' unchallenged evidence that livestock transport is hard physical work that requires a person to get up onto and inside the crates to load and unload the animals, as well as climbing down from the cabin of the prime mover to attend to animals as well as to open and close gates. A degree of caution is required around the animals because of their propensity to resist control. Most of the roads off the highway out in the Bourke and Enngonia area are rough and tend to become corrugated. This causes substantial wear and tear on tyres, which need to be changed more regularly as a consequence. Anyone who changes a tyre on these vehicles must be able to get in under the trailer. 107As a result of the accident he ceased the business selling feral goats on behalf of other landowners to the abattoirs in return for commission. The so-called goat commission business was conducted by the two-way partnership. Although the plaintiff claimed a substantial sum for the loss of the capacity to conduct this business, the financial records demonstrate that the two-way partnership produced only a modest income prior to the accident which bears no relationship to the amounts claimed in these proceedings. 108In June 2010, after the plaintiff had become re-licensed to drive trucks following his amputation, he resumed truck driving part-time to help out Mr Roberts. In October 2010 the plaintiff purchased another prime-mover (with automatic transmission) for $360,000 and another trailer to form a road train and resumed driving trucks full-time himself because he believed it to be within his physical capacity to do so. The road train is, because of its size, not permitted to drive east of the Newell Highway. His children and hired labour helped him with farm work. 109The income generated by the three partnerships fluctuated over the years, both before and after the accident. The year 2011 was an exceptionally good year in that the plaintiff's income as per his tax return was $49,790, which was unprecedented either before or since. It can be explained by the amount of rain that produced a bumper year. 110Mr Roberts continued to work for the four-way partnership until about September 2012, when he and his wife bought another transport business. The association with Mr Roberts was a profitable one and the cartage business earned more money during this period than it had done before the plaintiff's accident, as Mr Roberts was able to work full-time in the business. The plaintiff, before the accident, had had to juggle the cartage business with his commitments on the farm. For example, in the 2012 financial year the gross cartage income was over $650,000. When Mr Roberts stopped working for the plaintiff's partnership, the plaintiff sold the extra trailers because he could not physically maintain all of the equipment himself and it was not cost-effective to pay someone to do the maintenance. After Mr Roberts' departure, the level of gross income from the cartage business reverted to a level which was at least of the order that it had been before the plaintiff's accident. 111For the 2013 financial year, the three-way partnership recorded its greatest profit, $174,669, of which the plaintiff's share was $58,234. The reason for the level that year was that the sheep that had been grazing at Karalee were sold when the property was sold and therefore the income from their sale was brought to account. During that year, the plaintiff purchased a Byrne trailer for $181,000. Otherwise the three-way partnership had produced a modest profit or loss since 2001, apart from the bumper year of 2011. 112On 5 July 2013, after much discussion within the family, Karalee was sold. Mr and Mrs Courts senior moved to a retirement village in Dubbo. By this time Mrs Courts was suffering from dementia. She had fallen and broken her hip in August 2012 and her mobility was compromised. The plaintiffs' parents also bought a 500-acre property, Glenbrae, at Wellington in November 2013 from the proceeds of Karalee. The three-way partnership, which had largely concerned the stock that had been kept at Karalee, continues in a reduced form and still has 60 cows and had, at one point, 50 steers on the Wellington property. The plaintiff and his wife remained in the Enngonia area on a rented property, Goolring, 20kms west of Enngonia, from which they conduct the freight business. His son, Henry, worked as his off-sider for seven months after he finished school. The plaintiff would, in the future, like to own rural property again, and would run cattle on it because they are less physically demanding than sheep. 113For the 2014 financial year the plaintiff's income as per his tax returns had reduced to $30,429, which he agreed was reflective of the climactic conditions. For the 2014 financial year, the four-way partnership recorded its greatest profit, of which the plaintiff's share was $35,001. The plaintiff said that the reason for the high income was that he had spent all of his time driving trucks in that financial year and did not do anything else on the property (which was sold that year). He had been able to do so much driving because his son Henry was in the truck with him for seven months between finishing school and his call-up to get into the RAAF at Wagga. Indeed, the gross income from the cartage business for the 2014 financial year was in the order of $380,000.

Past economic loss: the expert evidence 114Mr Ivey, who was retained by the plaintiff, and Mr Smith, who was retained by the defendants, prepared a joint report following a joint conclave in which their respective, and agreed, assessments of the plaintiff's economic loss are set out. They had earlier prepared individual reports. There was, following the conclave, substantial agreement between them. Regrettably, their consensus is not of particular assistance in the assessment of damages, principally because their assessment of loss of income has been premised on flawed assumptions that have not been established and is, in the main, inconsistent with the plaintiff's tax returns. 115The assumptions made by Mr Ivey were adopted by Mr Smith. The following assumptions with respect to freight income have not been made out. 116The first unproved assumption is that the whole of the income from the trucking business, which was carried out under the auspices of the four-way partnership ought be attributed to the plaintiff, because prior to the accident, the plaintiff was the only person to do the actual driving that produced the income for the business. The evidence did not show what contribution, if any, the plaintiff's parents made to that business but the plaintiff's mother was, until the sale of Karalee in 2013, the owner of the land on which the livestock business, which was also carried on by the four-way partnership, was conducted. The evidence did, however, establish that the plaintiff's wife made a significant contribution to the business by being responsible for all the books and paperwork associated with it as well as undertaking a management role. Had the plaintiff's wife not performed this essential work, the plaintiff would have had to pay someone to do what she did. There is no evidence as to the cost of this or that it would ever have come to that. I see no reason to suppose that the partnership was not an equal partnership or that the profits would not have been divided equally between the partners. The plaintiff relied on Husher v Husher [1999] HCA 47; 197 CLR 138 in support of the proposition that the whole of the income of the partnership should be attributed to the plaintiff's efforts. However in Husher v Husher, the appellant's wife's contribution to the partnership between them was negligible. The present case is, for the reasons given above, distinguishable. 117The second unproved assumption is that there would have been an increase in freight income every year but for the accident. There are two difficulties with this assumption: first, there is no evidence that the rates charged for freight increased over the period; and secondly, there is no evidence that the plaintiff had any extra capacity to do more trucking but for the accident, having regard to his other obligations on the farm. One cannot infer from Mr Roberts' income that any unused demand could have been fulfilled by the plaintiff since, unlike the plaintiff prior to the accident, Mr Roberts was working full time as a truck driver. 118The third unproved assumption is that, but for the accident, the plaintiff would have engaged Mr Roberts to undertake trucking work and that both Mr Roberts and the plaintiff would have been simultaneously engaged in trucking. The plaintiff did not give evidence to that effect. Indeed his evidence was to the contrary: namely, that he engaged Mr Roberts because he was unable to drive heavy vehicles as he had done before. 119However, as it happens, the plaintiff has actually increased his cartage income since the accident because he has been driving more, with the assistance of others, including his sons. In 2014 the plaintiff by his efforts generated gross income for the four-way partnership in respect of the cartage business in the order of $380,000. Mr Ivey accepted that, on the basis of this figure, there had been no loss of freight income in 2014. 120The other significant matter which makes the basis on which the opinions of Mr Ivey and Mr Smith unsound for the purposes of assessing damages for economic loss is that they paid no regard to the way the businesses were actually conducted. Mr Ivey assumed (as referred to in the first assumption), that the plaintiff was effectively a sole trader and then applied a percentage of 45% as being the proportion expenses would bear to gross income to derive a figure for net income. The selection of 45% was artificial and inconsistent with the tax returns and partnership accounts. For the year ended 30 June 2014, the gross freight income was in the order of $380,000. If 45% were an appropriate percentage, the profit recorded would be in the order of $170,000. The partnership has not recorded, and did not ever record, a profit of that order. Mr Ivey has calculated the plaintiff's loss to be considerably more than he ever disclosed as profit in any of his financial statements before the accident. 121The following assumptions made by the experts with respect to goat commission have not been made out. 122The first assumption not made out is the assumption that the plaintiff earned 100% of the income from this activity without any contribution from any member of the family. For the reasons given above this assumption is contrary to the evidence. I would infer that, at best, the plaintiff had a right to 50% of the income from goat commission. 123The second assumption not made out is that expenses comprised 2% of gross goat commission income. The evidence showed that many expenses were claimed as having been incurred in the course of the goat commission business such that it never generated an annual profit of more than $20,000 in total. In these circumstances I cannot accept Mr Ivey's evidence that, for example, in the 2009 financial year, the plaintiff alone should be compensated by an amount of $30,000.

The assessment of economic loss 124The plaintiff is entitled to be compensated for loss of economic capacity in so far as it was (or, as to the future, is likely to be) productive of economic loss: Graham v Baker [1961] HCA 48; 106 CLR 340.

Past economic loss: assessment of damages 125 The plaintiff undoubtedly suffered a loss of income for the year ended 30 June 2009, being the financial year in which the accident occurred. It is reasonable to assume that, but for the accident, the plaintiff would have earned about the same in that year as he had in the previous year. This makes some allowance for an increase, since the accident occurred in November 2008. 126For the years during which Mr Roberts was retained, the plaintiff did not suffer a loss of freight income because he actually earned more than he would have done had he done the work himself alone. The combination of the plaintiff and Mr Roberts driving trucks together was more profitable than had the plaintiff, uninjured, continued to do so alone. This shows that there was an opportunity for growth of the business before the accident which was not realised. However there is no evidence that it would have been realised but for the accident. In the years 2010 to 2012 the plaintiff suffered no financial loss because he engaged Mr Roberts. Since that time, the plaintiff has been earning a much higher gross income than he had done previously. I accept the plaintiff's evidence that his children and Mr McCormack helped him in the truck from time to time. However their wages did not have a significant effect on the profit from this activity. 127In these circumstances, damages for economic loss cannot be assessed on the basis proposed by Mr Ivey, or the joint report. The findings I have made above, in substance, accept the challenges made by the defendants to that evidence. The evidence shows that, of the businesses conducted by the various partnerships, the cartage business was the most profitable, which is why the plaintiff concentrated on it when he returned to work in 2010. 128In my view this is a case where a buffer is warranted: Pollard v Baulderstone Hornibrook Engineering Pty Limited [2008] NSWCA 99 at [84] and Allianz Australia Insurance Limited v Cervantes [2012] NSWCA 244 at [33] ff. As most of that loss was suffered in the 2009 financial year, he is entitled to interest on the larger portion of that sum. It is not possible to calculate the interest exactly because the time of hypothetical payments is too uncertain to do so. I award damages for past economic loss including interest of $100,000.

Future economic loss 129I am obliged, by s 13 of the Civil Liability Act to make findings as to the plaintiff's most likely probable future circumstances but for the accident. In my view, but for the accident the plaintiff would have continued to engage in farming activities (whether at Karalee or at another property) well into his old age as well as driving heavy vehicles engaged in carrying stock until the age of about seventy. It is likely that, but for the accident, one or more of his children would have taken over the heavier physical work of farming but that he would still have been engaged in it, much as has transpired between the plaintiff and his own father. 130By reason of the accident, the plaintiff's capacity to do heavy work has been substantially compromised. Although his diligence, industry and stoicism have enabled him to continue both with trucking and farming since the accident, his physical strength and stamina can be expected to diminish more quickly as a result of the amputation of his left leg, than they would have done had he been fully able-bodied. 131As referred to above, whether Karalee would have been sold in any event is a matter of speculation rather than something of which I can be satisfied on the balance of probabilities. However, even if Karalee had been retained, the plaintiff's mother, as owner, would have required some financial support in the future having regard to her dementia and need for greater care. The status quo that applied before the accident (farming activities on a rent-free property) was not likely to continue. Although the family might have believed that they could care for her at Karalee, her dementia became apparent after the accident and it may be that she would have had to move to Dubbo for greater care anyway. I am not satisfied that the loss of Karalee caused any loss to the plaintiff that can be quantified from the evidence. 132Mr Blacket ultimately, in reply to Mr Cavanagh's submissions, contended that damages for future loss of earnings could be assessed on three alternative bases, if I accepted the defendants' submission, as I do, about the lack of utility of the evidence of Mr Ivey and Mr Smith in the joint report. The three alternative bases for which he contended are: (1)the cost of substitute labour of a senior station hand from the date of trial to age 75 of $721,202; (2)loss of earnings as a truck driver until the age of 75, deferred until 55 ($956,983, with credit to be given because available for full-time farming); (3)the cost of an offsider in and out of the truck for 40 weeks a year ($517,335); plus loss of goat commission ($527,638); plus the cost of substitute farm labour for 10 weeks a year to age 75 ($138,692). 133I do not consider that (1) accords with the most likely future circumstance since I consider that, but for the accident, the plaintiff would have continued to work as a truck driver and a farmer. Nor do I consider (2) to accord with the most likely future circumstance since, but for the accident, I do not consider that the plaintiff would have worked full-time as a truck driver to age 75 because of his family tradition of farming, which he would probably have continued, particularly given his sons' evident interest in the land. 134Scenario (3) is probably the most apposite scenario in that it takes account of the need for the plaintiff to obtain assistance from others to maintain his working capacity and allows for assistance to be provided from the date of judgment, which is reasonable, having regard to the plaintiff's present difficulties in performing heavy physical work. I accept the evidence, including that given by the plaintiff's wife, that the only way the plaintiff was able to drive for the distances and hours that he in fact did was because she or the children or an offsider was alongside him, to help with unloading or loading the animals, and other heavy physical work, including, presumably, getting down from the cabin of the prime mover to open gates and close them again. For the reasons given above, the amount for the loss of goat commission cannot be accepted since it bears no relationship to the actual profit earned from that business pre-accident. 135Some allowance needs to be made in the figures for the fact that the monies paid to others would be deductible expenses for the plaintiff and therefore they ought not be allowed as full net figures. In my view a figure of $425,000, being $500,000 less vicissitudes of 15% ought be allowed for future economic loss. I am conscious that the raw figure of $500,000 is broadly equivalent to $650 per week x 768.7, being the 5% multiplier for 26 years to age 75 and it might be said that the plaintiff did not consistently earn amounts of this order prior to his accident. Nonetheless I consider it to be a reasonable buffer to compensate him for his undoubted loss of earning capacity.

Past out-of-pocket expenses 136These have been agreed at $153,136.80.

Future out-of-pocket expenses 137There is a substantial dispute about the damages that ought to be awarded for this item. On the one hand the plaintiff relied on Dr Buckley's specification of what is required and the expert costing. The plaintiff claimed that the cost of an additional sports prosthesis was reasonable since he was an active man who enjoyed snow skiing and water skiing and he should not have to forego these activities because of the accident. I note that the plaintiff has attempted to water ski with his existing prosthesis but he gave evidence that this was difficult because it was not specially designed for that purpose. 138On the other hand, the defendants submitted that the past is the best guide to the future and that if one extrapolates past expenditure into the future, one is adopting a conservative approach that is likely to favour the plaintiff since much expenditure has been incurred since the accident that may not need to be incurred in the future. They submitted that Dr Buckley's specification contains many items that will not reasonably be required and therefore ought not be included in the amount awarded for this head of damages. They relied on the plaintiff's evidence that he is sick of hospitals and does not intend to have further surgery. The defendants submitted that an amount of $65,000 (being the mid-point between $37,000 based on the average weekly figure for the past two years and $90,000, based on the average weekly figure from January 2010 to June 2014) for prostheses and twice-annual visits to a general practitioner and one specialist physician visit at $5,500 ought be allowed, giving rise to a total figure of $70,500. 139I allow $100,000 for future out-of-pocket expenses. I consider the defendants' calculations to be reasonable, except in so far as they make no allowance for a sports prosthesis. I consider it to be reasonable that some allowance be made for its cost over the, say, next ten years or so. Further, extra expenses will be incurred by reason of the fact that the plaintiff needs to travel to Sydney whenever he needs a replacement prosthesis, or repairs or adjustments to be done, although I take into account the circumstance that the plaintiff travels to Sydney from time to time, in any event. The defendants did not apply a discount to their proposed figure, or suggest that it ought be applied to this head of damages. Accordingly I have not applied a discount for vicissitudes for this head of damages.

Past domestic care and assistance 140This figure has been agreed at $30,000. There is no claim for future domestic care and assistance.

Summary of damages awarded 141For the foregoing reasons I assess damages as follows: Head of damages Amount Non-economic loss (50%) $286,100 Past economic loss, including interest $100,000 Future economic loss $425,000 Past out of pocket expenses (agreed) $153,136.80 Future out of pocket expenses $100,000 Past domestic care and assistance (agreed) $30,000

Orders 142Since there is to be a reduction for contributory negligence of 40%, the plaintiff is entitled to judgment against both defendants for $656,542, of which, having regard to my reasons for the apportionment, Country Energy is liable for $437,695 and Mr Ridge is liable for $218,847. As the cross-claims between the defendants are solely as to contribution, I do not propose to make specific orders as to their determination unless requested by the parties. I have been asked by the parties to reserve the question of costs. 143I make the following orders: (1)Judgment for the plaintiff against the defendants in the sum of $656,542 (the judgment sum). (2)Declare that liability for the judgment sum be apportioned such that the first defendant is liable for two-thirds of the judgment sum and the second defendant is liable for one-third of the judgment sum and determine the cross-claims between them accordingly. (3)Reserve the question of the costs of the proceedings and of the cross-claims and direct that any applications for costs be made in writing to my Associate within seven (7) days hereof, together with an indication whether the relevant party consents to the application being dealt with on the papers, or whether the matter ought be listed for oral argument.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2014