Giovenco v Dick

District Court of NSW|2009-06-19|Before: Mr AJ

Verdict and judgment for the plaintiff against each defendant in the sum of $350,000; 2. The defendants are to pay the plaintiff's costs on the ordinary basis unless otherwise ordered; DECISION: 3. On the cross claims, as between the defendants, liability is apportioned in the proportion of 20 per cent on the part of the first defendant and 80 per cent on the part of the second defendant; 4. No order as to costs in respect of the cross claims; 5. Exhibits may be returned; 6. Liberty to apply on 7 days notice if further orders are required.

CATCHWORDS: TORTS - negligence - occupier's liability - unwitnessed electrocution death of self - employed handyman in course of repairing a roof leak at the base of a redundant roof mounted solar hot water installation on rental property owned by first defendant - second defendant plumbing contractor previously carried out work on the system - redundant hot water system left connected to electricity supply - considerations under Civil Liability Act 2002 - contested liability in negligence for damages claimed by surviving de-facto spouse of deceased - liability assessment where precise mechanism of electrocution not known - whether there was contributory negligence on the part of the deceased - apportionment of liability between defendants - DAMAGES - damages agreed pursuant to Compensation to Relatives Act 1897

Civil Liability Act 2002, ss 5B; 5D; 5E, 5F, 5G, 5I, 5R and 5T LEGISLATION CITED: Compensation to Relatives Act 1897 Electrical Safety (Electrical Installations) Regulations 1998 Evidence Act 1995, ss 79 and 80

Bhambra v Roet [2003] NSWCA 393 Chapman v Hearse [1961] HCA 46 at [6]; (1961) 106 CLR 112 Chappell v Hart [1998] HCA 55; (1998) 195 CLR 232 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Donoghue v Stevenson [1931] UKHL 3; (1932) AC 562; Haber v Walker [1963] VR 339 Haynes v Harwood (1935) 1KB 146 Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267 CASES CITED: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 353 March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Mason v Demasi [2009] NSWCA 227 Modbury Triangle v Anzil [2000] HCA 61; (2000) 205 CLR 254 Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49 Northern Sandblasting v Harris [1997] HCA 39; (1997) 188 CLR 313 Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7 Roads and Traffic Authority of New South Wales v Dederer & Anor [2007] HCA 42; 234 CLR 330 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Fiona Giovenco (Plaintiff) PARTIES: Geoffrey John Dick (First defendant) Paul Thomas Stephens t/as CTS Plumbing (Second defendant)

Mr AJ Stone (Plaintiff) COUNSEL: Mr R Cheney (First defendant) Mr ADM Hewitt SC (Second defendant)

Stacks / Goudkamp (Plaintiff) SOLICITORS: Lee & Lyons (First defendant) Curwoods (Second defendant)

Nature of the case and background [1] - [4] Issues for determination [5] - [6] Summary of findings [7] - [9] Evidence survey [10] - [56] Overview of the array of evidence [10] - [13] Oral evidence [14] - [38] Mr Gell [14] - [16] Mr Dick [17] - [26] Mr Stephens [27] - [38] Factual reports [39] - [44] Expert reports [45] - [56] Mr Armstrong [46] Mr Carmody [47] - [49] Mr Blacker [50] Associate Professor Blackburn [51] - [56] Facts [57] - [90] Ownership, use and condition of premises [58] - [59] A problem with the solar hot water system on the premises [60] Defendants' knowledge of problem with hot water service [61] - [65] Installation of a new gas hot water system [66] - [70] Mr Harley's involvement with the premises [71] - [78] The Gell/Harley inspection in September/October 2004 [79] - [81] The events of 23 October 2004 and the death of Mr Harley [82] - [90] Credit issues [91] - [104] Findings on the liability issues in dispute [105] Issue 1 - Continued electricity connection to redundant system [106] - [109] Issue 2 - Awareness of first defendant of continued electrical connection [110] - [133] Issue 3 - Duty of care of first defendant [134] - [155] Issue 4 - Whether second defendant had a duty to advise first defendant [156] - [173] Issue 5 - Scope of first defendant's duty of care [174] - [184] Issue 6 - Whether first defendant was negligent [185] - [208] Issue 7 - Duty of care of second defendant [209] - [216] Issue 8 - Scope of second defendant's duty of care [217] - [224] Issue 9 - Whether second defendant was negligent [225] - [266] Issue 10 - Causation [267] - [287] Issue 11 - Alleged contributory negligence [288] - [332] Issue 12 - Apportionment between defendants [333] - [338] Disposition [339] Costs [340] Orders [341]

On 26 October 2004 the late Mr Allan Harley was working as a self-employed handyman contractor when he received a fatal electrocution injury. This occurred whilst he was carrying out repair work on the leaking roof of a residential rental property owned by the first defendant Mr Geoffrey Dick, whose property was situated at 364 Abercrombie Street Darlington, NSW. The actual events of the incident were not witnessed.

Earlier, in November 2001, the second defendant Mr Paul Stephens, who traded under the name of CTS Plumbing Contractors, had agreed to carry out plumbing work on the roof of the premises. On 23 November 2001, a plumber employed by Mr Stephens carried out work on the premises to decommission the water connections of a redundant solar hot water system and to replace it with a new gas hot water system.

There was no dispute that Mr Harley was electrocuted whilst on the roof of the property because a live and active electrical connection had inappropriately remained connected to the redundant solar hot water system and he had somehow come into contact with a live electric current whilst he was in the course of carrying out his work on the roof.

The plaintiff, Fiona Giovenco, was the de facto partner of Mr Harley. She brings this claim against each of the defendants, claiming that the death of Mr Harley was due to their negligence. She seeks an award of damages pursuant to s 4 of the Compensation to Relatives Act 1897. The defendants have each denied liability and allege there was contributory negligence on the part of Mr Harley. The defendants have also exchanged cross claims with each other.

The plaintiff identified a combination of 22 factual and legal liability issues including derivative issues for determination. The defendants identified additional issues, some of which overlapped with the issues identified by the plaintiff. I consider that the essential liability questions can be conveniently grouped into the following 12 categories: Issue 1 : Whether a live and active electricity supply remained connected to the storage unit of the redundant solar hot water system on the premises after the installation of the new gas hot water system; Issue 2 : Whether the first defendant was aware, or ought to have been aware, that the electricity supply remained connected to the redundant solar hot water storage system after the new gas hot water system had been installed; Issue 3 : If the first defendant was aware, or ought to have been aware, that the electricity supply had remained connected to the redundant solar hot water system, did he owe a legal duty to ensure that the electricity was disconnected when that system was made redundant; Issue 4 : Whether the second defendant, Mr Stephens owed a legal duty to advise the first defendant as to the need to disconnect the electricity supply to the redundant solar hot water system after the new gas hot water system had been installed; Issue 5 : Whether the first defendant, Mr Dick owed a duty of care to the late Allan Harley concerning his work as a handyman on or around the redundant rooftop solar hot water system; if so, what was the scope of that duty; did the scope of the duty extend to ensuring that the redundant solar hot water system was safe to work on and around; did the scope also extend to ensuring that the water storage unit to the redundant solar hot water system did not unnecessarily continue to be connected to the electricity supply; Issue 6 : Was there a breach of duty of care on the part of the first defendant, and if so, did such breach constitute negligence on the part of the first defendant; Issue 7: When the second defendant installed the gas hot water system on the first defendant's premises, ought he to have reasonably foreseen that persons might subsequently work on the redundant solar hot water system, with the attendant risk that injury to such persons might arise, and if so, whether the second defendant owed a duty of care to such persons; Issue 8 : If it ought to have been apparent to the second defendant that persons might at a later time foreseeably work on the redundant solar hot water system, and thereby become foreseeably exposed to injury such that a duty of care arose, what was the scope of any such duty; were steps required to be taken by the second defendant to reduce the risk of injury to such persons, including by recommending advice and assistance be obtained from a qualified electrician; did the scope of any such duty extend to notifying the owner of the premises that it was necessary to disconnect the continued active flow of electricity to the redundant storage tank of the solar hot water system or alternatively, did the scope of the duty extend to recommending to the owner of the premises that relevant advice and or assistance be obtained from an electrician; Issue 9 : Was there a breach of duty of care on the part of the second defendant and if so did such breach constitute negligence on the part of the second defendant; Issue 10 : Whether the death of Mr Harley was caused by the negligence of the defendants, or either of them; Issue 11 : Whether there was any contributory negligence on the part of Mr Harley and if so, did any such contributory negligence cause or materially contribute to Mr Harley's death; Issue 12 : In the event of breach of duty of care being established against both defendants, what is the appropriate apportionment between them;

Damages pursuant to s 4 of the Compensation to Relatives Act 1897 have been agreed between the parties in the sum of $350,000.

I have found that at the relevant time, on or about 23 November 2001, a live and active electricity supply remained connected to the redundant solar hot water system after the installation of a new gas hot water system on the premises. I have found that the first defendant was aware, and ought to have been aware, that this was the case. I have found that as a consequence of such awareness on his part, the first defendant owed a legal duty to ensure that the electricity supply was disconnected from the redundant system. I have also found that the second defendant owed a legal duty to advise the first defendant of the need to effect a disconnection of that electricity supply to the redundant system.

I have found that the electrocution death of Mr Harley was reasonably foreseeable to both defendants such that a duty of care was owed to Mr Harley by both defendants. I have found that each of the defendants were in breach of their respective duties of care and that the plaintiff has in this regard satisfied the requirements of the Civil Liability Act 2002 with regard to proof of negligence and causation.

I have rejected the alleged defence of contributory negligence on the part of Mr Harley, as was raised by each of the defendants. I have found that the defendants have each failed to discharge the onus they carried for proof of such a defence. I have apportioned the respective responsibilities for the death of Mr Harley in the proportion 20 per cent to be borne by the first defendant, Mr Dick, and 80 per cent to be borne by the second defendant, Mr Stephens. The plaintiff is entitled to a verdict and judgment in her favour in the agreed sum of $350,000.

The only oral evidence that was called was from: (a) Mr William Gell, a former resident of neighbouring premises and a one time assistant to Mr Harley; (b) Mr Geoffrey Dick, the first defendant owner of the premises; (c) Mr Paul Stephens, the second defendant plumber responsible for the plumbing work that had been carried out on the premises.

The plaintiff tendered an array of witness statements and reports gathered by investigating police and inspectors from the Workcover Authority. These were incorporated into the bundle that comprised Exhibit "A".

The parties tendered a number of expert reports. None of these experts were called to give oral evidence for clarification of the opinions set out in their respective reports. Those experts were: (a) Mr Bill Armstrong, a plumber, whose report was dated 18 September 2003. This report was tendered by the plaintiff and was marked Exhibit "A.13". (b) Mr Noel Carmody, an electrician whose reports were dated March 2008 and December 2008. These reports were tendered by the plaintiff and were marked Exhibits "A.14" and "A.15". (c) Mr Bruce Blacker, an electrician, whose report was dated 23 November 2008. This report was tendered by the first defendant and was marked first defendant's Exhibit "1". (d) Associate Professor Trevor Blackburn, an electrical engineer, whose report was dated 17 November 2008. This report was tendered by the second defendant and was marked as the second defendant's Exhibit "1".

Following my review of the array of the evidence it became clear that the determination of the issues in this case was largely dependent on the facts and not so much on the opinions of experts. This was so because, to varying degrees, amongst the experts there was in my view unwarranted speculation concerning the factual assumptions upon which their opinions were based. In my reasons I have referred to the expert evidence where it became relevant to do so.

Mr Gell gave a statement to the investigating police on 17 November 2004. That statement was Exhibit "A.8". In that statement he described how, on an unspecified date in about early October 2004, which was about 6 weeks before he gave his statement to the police, Mr Gell accompanied Mr Harley up onto the roof of Dick's premises to inspect a problem with the hot hater system. He noticed a broken glass panel and some wires running off to the hot water tank. He said that they felt the pipes on the tank and he felt that they were hot. He recounted the effect of a consequent conversation he had with Mr Harley in which he and Mr Harley had agreed to leave the job and "get an electrician to look at it." He also recounted hearing Mr Harley make a call on his mobile phone to the landlord and ask him to arrange for an electrician to "come out and look at the problem."

In his oral evidence Mr Gell identified relevant portions of the solar hot water system apparatus shown in the photographs to which he was taken. Mr Gell's statement was not challenged however his recollections of the relevant events of that inspection were explored. He reiterated his observation of the water pipe feeling hot to touch, he described water dripping from the pipe and he described steam escaping, leading him to conclude that some form of electricity was running through the system at that time. He, in the company of Mr Harley, was concerned about getting an electric shock and they both refrained from touching the system. As I read his evidence, at the time of the trial Mr Gell could not be one hundred per cent certain whether Mr Harley rang the landlord or had rung an electrician after it was decided not to touch the apparatus.

Significantly, when Mr Gell was cross-examined, neither defendant suggested to him that his statement was wrong or that it was in any way inaccurate.

Some 8 weeks after Mr Harley's death, Mr Dick gave a statement to the investigating police on 21 December 2004. That statement was made on the same day that he was interviewed by inspectors from the Workcover Authority. His statement, and the record of interview, comprise Exhibits "A.9" and A.10".

Mr Dick provided a history of the solar hot water system to his tenanted premises. He described a storm that smashed one of the glass solar panels on the roof. It was agreed that the storm had occurred on 14 April 1999. The solar hot water system nevertheless still worked somehow despite that smashed panel. The storm-damaged slate on the roof was repaired under an insurance claim but apparently the hot water system was not repaired on that occasion. Mr Dick then described a problem that arose later, in about 2001 when that solar hot water system developed a leak.

He confirmed that his rental agents, LJ Hooker of Newtown, had arranged for a plumber to inspect the leaking system. That plumber, the second defendant, Mr Stephens, advised him that the solar hot water system had a hole in it and was no longer of any use. The tank had rusted through to create a hole. As a result, it was suggested that a new gas hot water system be installed at ground level on the property. That work was later carried out by an employee of Mr Stephens.

Mr Dick's statement went on to describe how, at the beginning of 2004, at a time when Mr Harley was carrying out some other repair work for him on the premises, he discussed with him the presence of a water stain on the ceiling of the upstairs hallway, a problem which Mr Harley indicated to Mr Dick that he would fix for him one day. Mr Dick said that some weeks later he had followed up Mr Harley on the matter of the leak and was told that leaking water was getting through the bolts fixing the solar hot water system framework to the roof. Mr Dick said Mr Harley indicated he would get some sealant to seal the bolts to see if that fixed the problem, and if this did not fix the problem it was flagged that the entire solar hot water system may have to be pulled down.

When Mr Dick was interviewed by inspectors from the Workcover Authority he gave further details. He said he had been told of Mr Harley's death by his letting agent. He confirmed that in about February or March of 2004 he had engaged Mr Harley to carry out work on the premises. He confirmed that before Mr Harley went to the house to investigate the leaking roof it had been leaking for a long time, even before he had purchased the property. He confirmed that he had authorised Mr Harley to try to seal around the rusting mounting bolts of the system and that Mr Harley had told him that it might become necessary to pull the solar heating system off the roof if his attempts at sealing around the mounting bolts did not work. He stated that he was unaware that on the day Mr Harley died he was working on the roof and assumed he was there to seal the bolts but was not sure. He also confirmed that so far as he was aware, neither he nor his agents had provided Mr Harley with instructions in relation to the work he was to undertake on the roof on the premises. In his interview with the Workcover inspector Mr Dick identified the post-incident state of the solar hot water system as having been "half pulled to pieces by the looks of it." He went on to say he had given no instructions to remove the solar hot water system from the roof.

Mr Dick's oral evidence provided some additional detail. He said he thought he had acquired the property in about 1997 and at that time the solar hot water system was already in place. In answer to a leading question he claimed that he had no appreciation that a solar hot water system such as the one that was on the roof of his property had an electrical connection to it. He identified his last conversation with Mr Harley, in which he had followed up Mr Harley about fixing the leak, as having occurred some 6 to 8 weeks after the initial conversation about the problem. He confirmed he had twice been up on the roof of the property himself, once when he bought the property and once when he inspected the damage from the storm when making the insurance claim. He was unable to identify the dates of these occasions. He conceded that it was possible that on his first rooftop inspection of the property he would have seen wires from the solar hot water system into the house. Significantly, Mr Dick denied ever having been told, either by Mr Harley or by his letting agents, that an electrician would be required to assist in dismantling the solar hot water system on the roof. He denied knowledge of a Mr Sama, an electrician.

Mr Dick explained that the reason he did not replace the solar hot water system with another solar hot water system was that this was "too expensive."

He claimed that he did not expect Mr Harley to pull down the hot water system to seal the mounting bolts, explaining that would be a major expense he would have been expected to have been advised of beforehand. He claimed not to have given "a second thought" to whether or not the solar hot water system had an electrical back-up to the heating energy obtained from the sun. He said that after the hailstorm damage an insurance loss adjuster had inspected the roof and told him of the damage to a solar panel on the roof. He said he later he went up to have a look because he was "just being nosey" and satisfied himself that the insurance loss adjuster "wasn't trying to pull the wool over" his eyes. He denied having been made aware of tenant's complaints about the quality of the hot water to the premises until about November 2001, when there were such complaints. He confirmed that these complaints led to the engagement of Mr Stephens to install the new gas hot water system. He said he gave Mr Stephens the go ahead to carry out the installation of the new gas system after considering his quotation. He agreed that he had understood the quotation from Mr Stephens to refer to only disconnecting the hot and cold water from the existing hot water system. He confirmed that Mr Stephens had not given him any advice about retaining the services or assistance of an electrician to complete the redundancy work. On the solar hot water system.

Significantly, in his oral evidence Mr Dick sought to materially add to his statement and record of interview of 21 December 2004 by claiming a third conversation with Mr Harley about the works in question. He claimed that a recollection of this later conversation came to him in January of 2009, when he was giving the matter some thought and recalled Mr Harley ringing him, but he was unsure as to what the call was about. On behalf of the plaintiff it was suggested that this recollection was created by Mr Dick to make his evidence fit together. Significantly, he was unable to explain how, despite two thorough interviews with police officers and Workcover inspectors some 8 weeks after Mr Harley's death, he was not able to remember a material conversation he had with Mr Harley until some 4 years later, and had only raised it with his legal advisors on the day he gave his evidence at the trial of these proceedings. He denied structuring his evidence to best fit a defence and he denied structuring his statements to minimise the prospect of responsibility for Mr Harley's death being attributed to him. The plaintiff submitted that Mr Dick's evidence in this regard was disingenuous.

Mr Dick agreed that the possibility of needing to have the solar hot water system removed in order to properly seal the roof might have been raised with him. That evidence did not appear to sit well with his earlier evidence that he that all he understood that Mr Harley was going to do was to get up on the roof and put some silicone or sealer around the bolts. When asked to explain the sequence of mechanical steps involved in that process he said "…Climb up a ladder and put some silicone around it, I suppose. I didn't think about it. I don't know." He later said there was no discussion with Mr Harley about the scope of his work on the roof which included removal of the solar hot water system. When pressed about this subject, Mr Dick was definite that there was no discussion with Mr Harley about removing the solar hot water system. He initially adamantly denied the possibility that his recollections could be erroneous. He ultimately conceded the possibility that his recollections were being shaped by a desire to minimise his role in the responsibility for Mr Harley's death, however he then went on to deny the truth of that proposition.

Mr Stephens, the second defendant, was an experienced plumber. He had been called to the premises because there were options under considerations for replacing the hot water service on the premises. He had received a telephone call from the managing agents asking for him to go to the property to investigate a problem with the hot water system. He was the first tradesman to arrive on the job. He later observed the arrival on the property of an electrician, Mr Joe Sama, whom he knew to be someone who did occasional electrical work for Mr Dick's letting agents, LJ Hooker of Newtown. Mr Stephens said that he understood the electrician was there to quote on an alternative electrical system. It was not made clear whether this evidence referred to a new electrical hot water system or to a new electrical system for the premises. Mr Stephens said he did not know whether that electrician, Mr Joe Sama, went up onto the roof or not, but he did say that the electrician was not up on the roof whilst he was there.

Mr Stephens recounted his observation, following his inspection of the roof. He observed water to be leaking from a metal hot water cylinder that had rusted through so that it was not holding the pressure anymore and it was leaking through its casing. He advised the agents that a new system was required. He was given Mr Dick's telephone number and he then had a conversation with Mr Dick and advised him he needed a new hot water system because the existing system was rusted and leaking. He stated that he turned off the water supply to the solar hot water system. He said that knew the solar hot water system was connected to the electricity supply but he did not want to, and would not touch the electrical supply to the solar hot water system. Mr Stephens confirmed that Mr Dick did not seek any advice from him concerning the electrical aspects of the installation of the solar hot water system.

Mr Stephens said he recalled being on the roof on the day he attended the premises. He recalled turning off the cold water tap which supplied water to the solar hot water system because water was continually dripping down the roof, into the gutters and running down the street and was wasting water. He acknowledged that if the water supply to the system was turned off without touching the power "…it could be a problem." The nature of the problem was not further defined. Mr Stephens did say that some freestanding hot water storage tanks which developed leaks, often from the top, could remain partially filled after draining, thus leaving the electrical heating elements still submerged in water. This evidence did not relate to the specific factual circumstances of the premises in question. Instead, it was given in hypothetical terms.

On the occasion he turned off the cold water supply to the solar hot water system, Mr Stephens stated that he did not otherwise interfere with the system. He said he recalled hearing of a solar panel to that system being cracked but did not take much notice of it. Mr Stephens said that he delivered the new gas hot water system to the premises and it was his employee, Mr Harders who carried out the necessary work. According to Mr Stephens, neither he nor Mr Harders returned to the roof top after the installation of the new system. Part of the work that was involved in that installation was to disconnect the pipes on the solar hot water system. He did not give Mr Harders any instructions to go up onto the roof but he observed Mr Harders go onto the roof and he said that at one stage they were there together. He said they "disconnected the hot and cold water pipes to the solar hot water system." He also said he was not on the site all the time, having left Mr Harders to carry out some of the work that was required.

The matter of the disconnection of the water pipes turned out to be some importance to the case. The description given by Mr Stephens as to what was involved in the disconnection of the water supply was as follows: "Q. Does the disconnection of that kind permit the remaining water in the tank to drain down if the taps in the house are activated? A. Yes. What we needed to do, you shut off the whole water supply to the tank and to reconnect into the hot water for the new position for the tank, if we hadn't have squeezed off the hot water coming out of the solar hart we would have had water spraying out everywhere. So basically that pipe up there was capped off. The hot water pipe coming out of the solar hart.

Q. I'm not quite following your terminology. You say on the one had "squeezed" which to me denotes a crimping mechanism. And then you refer to it being "capped off" which denotes a sealing mechanism. Which one are you referring to? A. Yes, it's capped off. It's a kinko nut and a screwed cap, basically. All we did was disconnect the pipe - the hot water pipe off the solar and we cap it off. So it closes that end, otherwise if we turn the hot water back on we are going to have water shooting out of that pipe, or feeding back - back feeding into the existing solar.

Q. So I can be clear on what that means, does the capping which you've described prevent water getting into the solar tank? A. Yes.

Q. And does it prevent the water that remains in the tank from draining down into the household when the household taps are turned on? A. Yes.

Q. How does it do that? A. Basically, all we did was disconnect - there's two pipes, there's the cold going in, the hot coming out. We just capped them both off so they were physically disconnected from that tank.

Q. So the effect of what you did was to leave a quantity of water in the tank? A. Yes."

When cross-examined, Mr Stephens stated that he did not have a clear recollection of carrying out that capping work which he had described in the evidence I have cited. When shown the photographs comprising Exhibit "E", Mr Stephens was unable to identify any photographic evidence that showed where the pipes had been capped. He prefaced that evidence with the comment that the photographs were not entirely clear. His evidence was that the capping work needed to be done to prevent the back feeding of water into some part of the system that was left incompletely disconnected. I infer from his evidence that Mr Stephens based his evidence on the capping of the pipes on assumptions that the work was done, rather than upon any actual recollection that this was so.
There was an issue as to whether the solar hot water storage tank had been drained by either Mr Stephens or by Mr Harders. The evidence of Mr Stephens on this topic was as follows: "Q. So that we all understand, as well as capping the system, did you empty out the tank? A. The tank was emptying itself out because it was leaking.

Q. So did you just leave it to leak itself out? A. Yes.

Q. So you didn't actually drain the tank? A. No.

Q. Again is that an estimate as to what you would have done or is that an actual recollection? A. We definitely didn't drain it. Well, yes well the tank was leaking so and we weren't - the quote was to put the new gas hot water system in. There was no quote of disconnect and remove the solar off the roof.

Q. Let me show you the quote in the very last item on it - if the witness could have exhibit C. Could you just read to yourself the very last line of the quote? A. Yes.

Q. We can agree that you quoted that you were going to drain it? A. Yes."

When questioned further on whether the tank had in fact been drained, it became clear that the tank was left with water in it on the assumption that it would drain itself. When this issue was explored in closer detail it was clear that Mr Stephens could not recall the location of the leak in the tank. That location was critical to determining whether the tank would drain itself or alternatively, whether it would remain filled with water. Mr Stephens stated the opinion that if the tank had remained filled, evaporation of the water would have occurred. If that assumption was correct, he agreed this process would have at some stage exposed the electrical heating element component within the tank.

In retrospect Mr Stephens agreed that when he returned to the premises to disconnect the water supply to the solar hot water system, he created the prospect of the tank eventually running dry, or if the tank was left undrained, he would have left a tank full of water sitting on the roof. Mr Stephens was asked whether he could explain how, some three years after the work was undertaken, the tank would have been filled with water. He stated it was possible that the water in the tank could have come from the glass panels on the roof because there were big coils of water within those panels and he had not drained those panels so that the water in those panels would have still remained connected to the tank. He did not know if such glass panels would have still been heating and depositing hot water into the tank.

Mr Stephens said that after the job was completed he did not return to check that the work was done satisfactorily as he trusted Mr Harders to finish off the job. He confirmed that before carrying out the work he did not inspect the electrical board for the premises. He also confirmed that he did not speak to Mr Dick about the electrical component of the solar hot water system because he was not an electrician. He hypothetically agreed that if he was an electrician, which he was not, he would be telling the owner that the solar hot water system needed to be disconnected from the electricity supply.

Mr Stephens agreed with the proposition that in circumstances where the system had been made redundant, the contextual reference to the system being the solar hot water system, if there was still a live electric current running to it, it would have been appropriate to advise the landlord of such a state of affairs. He could not recall saying anything to Mr Dick as to the continued presence of a live and active electrical current to the solar hot water system at the conclusion of his own work. That position was consistent with the scope of his quotation for his work. When the attention of Mr Stephens was drawn to his evidence that if the tank had drained, this could have created the prospect of the element in the tank burning dry, he stated, obviously in hindsight, "I assume, which I probably shouldn't, that the electrical matters were going to be taken care of."

In the context in which the last cited evidence was given, I have taken the reference to the assumption stated by Mr Stephens to be a reference to an assumption in the past tense and not in the present tense. That answer was consistent with other evidence elicited from Mr Stephens by Mr Hewitt SC to the effect that he, Mr Stephens, had assumed that Mr Dick was talking to the electrician as he, Mr Stephens had only quoted on a new gas hot water system.

The factual description of the incident as set out in the Workcover factual report stated: "Unable to determine what victim was doing at the time of incident. However a solar hot water unit with plumbing disconnected was within the vicinity of the victim. The terminal cover of the solar hot water unit had been removed exposing the connections to inadvertent contact. Unable to determine from persons on site if supply to the hot water unit was energised at the time of the fatality."
The report went on to state: "Unable to determine if fatality was caused by electric shock."

The police investigation proceeded upon the premise that Mr Harley had been electrocuted. An ambulance report described the problem as being cardiac / respiratory arrest. There was no scope for resuscitation.

The inspectors from Workcover ascertained that there was no labelling evident on the wall mounted fuse box within the premises. There was no electrical safety cut out switch installed. An inspection of the roof revealed the storage tank of the solar hot water system to have been dislodged from its framework cradle at one end and one solar panel appeared damaged with cracked glass and it was bent up from its anchorage points on the roof. Plastic conduit was seen to traverse a path across the roof.

A statement made by an investigating police officer suggested that the damaged glass solar panel on the roof had been damaged for some time because it was evident that dirt had accumulated on the broken shards of glass that formed part of the unit. Significantly, that police officer described the hot water storage tank in the following terms: "… The reservoir tank had broken from its mount at the southern end, however had remained attached at the northern end. As a result the tank was sitting at an angle with the southern end sitting on the rooftop and the northern end still elevated. It appeared to me that the tank had fallen recently, as the water that would normally have been retained in the tank had spread all over the sides of the adjoined roof. …"

The police statement did not identify any definite sites of electrocution injury to Mr Harley's body when it was observed at the scene. No post-mortem medical reports were tendered. No death certificate or coronial inquiry findings were tendered, although it was apparent from Exhibit "A' that the coroner had at some stage been involved and his findings were made available to Mr Armstrong, the expert plumber engaged by the solicitor for the plaintiff.

In the paragraphs that follow I set out the essence of the opinions contained in the expert reports that were tendered in the proceedings.

The report of Mr Armstrong indicates at the time of the incident, it would have been common industry practice to disconnect both power and water to an existing hot water unit when replacing that system and this would have required the retention of a licensed electrician to disconnect the power to a solar roof mounted hot water system. There was no scope for controversy within that statement. There were other statements made in the report of Mr Armstrong which were based on assumptions and which involved speculation which in turn indicated that those latter matters had limited probative value.

The plaintiff tendered two reports from Mr Noel Carmody, a consultant electrician. Mr Carmody's first report outlined a general explanation as to how a solar hot water system operated. The report raised the prospect that the plumber in question may have installed the new gas hot water system to operate in parallel to the existing solar hot water system. It should be noted that there was no basis to infer this from within the array of factual evidence. The evidence of Mr Stephens and Mr Dick did not support that proposition. Whilst it is possible that Mr Harders may have achieved that result whilst carrying out his work, which was not checked by Mr Stephens, there was no evidentiary basis for such a view. I consider the suggestion raised by Mr Carmody to be non-probative and entirely speculative.

Mr Carmody expressed the view that if the redundant hot water system in question had been isolated from the electricity supply to the premises, the electrocution death of Mr Harley would not have occurred. He identified an inter-relationship between plumbing and electrical connections on the solar hot water system such that in his view, it would have been prudent for the plumber installing the new system to call an electrician to ensure compliance with the applicable wiring rules. Mr Carmody stated that a plumber installing a new hot water system in 2001 ought to have been aware that there was already another hot water system in place. That view was confirmed by Mr Stephens, who stated that he was aware that this was the situation at the premises. Mr Carmody cited the Electrical Safety (Electrical Installations) Regulations 1998, otherwise known as the Wiring Rules, in force at the time but repealed and subsequently replaced on 31 August 2004 as support for his opinion that when the redundant solar hot water service was taken out of service it should have been disconnected from the electricity supply. Those rules do not represent statutory counts but they do demonstrate a prudent course to be adopted in disconnecting disused electrical installations.

The supplementary report by Mr Carmody dealt with his responses to matters raised in an expert's report prepared for the first defendant by Associate Professor Blackburn. I will refer to his comments in that regard when analysing the defendant's expert evidence.

The first defendant tendered a report dated 23 November 2008 from Mr Bruce Blacker, a consultant electrician. Mr Blacker's report listed a number of documents some of which were not in evidence in these proceedings. His report was based on a number assumptions, one being that it appeared the covering plate over the electrical wiring on the solar water tank was removed by Mr Harley, thereby exposing live cables and terminals thus creating a hazard. I set out my analysis of that assumption in my reasons concerning the contributory negligence arguments raised by the defendants. Mr Blacker also expressed the view that it was not necessary for Mr Harley to remove the covering plate of that terminal box on the unit in order to seal the fixing bolts which mounted the structure on the roof. He also expressed the view that, provided the wiring of the redundant hot water system was in good order, there was no requirement for disused electrical equipment, here being a reference to the redundant solar hot water system, to be removed or to have its electrical supply disconnected. In this regard he was in agreement with the opinions of Associate Professor Blackburn. The assumptions underpinning those views require analysis.

Associate Professor Trevor Blackburn, an electrical engineer

The second defendant tendered a report dated 17 November 2008 from Associate Professor Trevor Blackburn, a consultant electrical engineer. Associate Professor Blackburn identified a number of assumptions upon which he based his opinions. A number of those assumptions had been provided to him by Mr Stephens and were ultimately shown to be unfounded or incorrect. It was assumed that Mr Harley had removed the cover plate of the unit's terminal box containing electrical wiring on the tank thus exposing live wiring. He postulated the possibility that Mr Harley may have turned on the water supply to the tank and thereby restarted the water leak. It was also assumed that the structure collapsed causing substantial quantities of water flowing over the roof and resulting in the electrocution of Mr Harley. Associate Professor Blackburn expressed the opinion that Mr Stephens was not required to warn Mr Dick of the need to disconnect the old solar hot water system even though he thought that leaving it connected in its redundant state was undesirable and inefficient. He said there was no mandatory requirement to disconnect it. Associate Professor Blackburn expressed the opinion that Mr Harley was partly responsible for the incident in question. These opinions will be examined in the course of identifying my findings on the key issues calling for decision.

Associate Professor Blackburn reviewed the materials provided to him and confirmed that he could not determine the cause and time of Mr Harley's electrocution nor could he determine the exact way in which the electrocution occurred. Notwithstanding this, he went on to postulate that the photographs taken by the police appear to show some burns to Mr Harley's hands which may have been consistent with electrical contact with live conductors, but he also noted that the precise current path through Mr Harley's body has not been determined. He noted that the possible opportunities for Mr Harley to come into contact with electricity were direct contact with the electrical wiring of the terminal box on the solar hot water storage unit or due to an extended range of potential electrical contact from the live wires in the terminal box due to the presence of water on the roof acting as an electrical conductor. He further explained that water on the skin acted to increase the severity of an electric shock by decreasing the electrical contact resistance of the skin. A number of other possibilities were canvassed and all of these involved speculation because of the limited nature of the factual evidence. Associate Professor Blackburn raised some possible causes for the electrocution of Mr Harley which bear consideration with regard to the allegations made by the defendants concerning alleged contributory negligence.

Associate Professor Blackburn analysed the set up of the gas hot water service installation on the premises and confirmed that the operation of it was not at all dependent on any connection to an electrical supply. He confirmed that the installation of that system did not require Mr Stephens to access the electricity supply. He also confirmed that the earthing system for electrical supply to the house was not dependent on an earthing connection between the supply source and the plumbing pipes, as sometimes occurs. The significance of this observation was that at the time Mr Stephens and Mr Harders worked on the plumbing they would not have had an electrical safety reason cutting the electricity supply to the solar hot water system on account of pipe earthing issues. This technical details of this issue were not discussed in the evidence given by Mr Stephens, apart from noting that he took volt meters with him on sites in case he came across old power lines so that he could check them. He did not give evidence of having inspected or examined the pipes for the presence of electrical current as was described in the observations of Associate Professor Blackburn.

In making an argument against the potential liability of Mr Stephens, Associate Professor Blackburn pointed out that on the return visit to the site by Mr Stephens to install the gas hot water system on the premises there was no need for Mr Stephens to go onto the roof. This was because the water supply to the solar hot water system had already been turned off and his remaining gas installation work was only required to be carried out at ground level. In this regard he also pointed out that because there was no electrical connection required for the new gas system, therefore there was also no need for Mr Stephens to examine the electrical switchboard.

Associate Professor Blackburn constructed his pivotal assumption that Mr Harley had removed the cover plate of the terminal box to the solar hot water storage unit. On the basis of that assumption he arrived at what he regarded to be the "inescapable conclusion that the accident was partly self-inflicted" by Mr Harley. He also postulated that the "collapse of the tank structure was most likely instigated by Mr Harley performing some work on the structure legs to try to prevent water leakage through the roof."

Associate Professor Blackburn discussed some issues which arose from the reports of the other experts. These issues will be analysed where relevant and necessary when I set out my findings on the liability issues calling for decision.

Before addressing the issues calling for determination it is necessary to review the non-controversial factual chronology concerning the history of the electricity supply to the redundant solar hot water system located on the roof of the premises and to also review the events that led up to the electrocution death of Mr Harley.

In about 1997 Mr Dick purchased the property at 334 Abercrombie Street Darlington and thereafter continued his ownership of the premises until the time of Mr Harley's death. The premises were rented out to tenants through Mr Dick's agents, L J Hooker, Newtown. The premises had been fitted with a roof mounted solar hot water system which had incorporated within it a hot water storage unit.

On 14 April 1999 a significant hailstorm occurred in Sydney. At that time one of the two glass solar panels on the roof of the premises became damaged. At some time after that hailstorm Mr Dick went onto the roof of the premises and inspected the damage occasioned by that storm. He did so in connection with an insurance claim in order to check on the reported damage. The plaintiff asserted that at the time of his inspection of the roof after the hailstorm, Mr Dick should have known that the solar hot water system was partially powered by electricity. Mr Stephens supported that submission. Mr Dick contended that such an inference should not be drawn.

A problem with the solar hot water service in the premises

In November 2001 Mr Dick's agents L J Hooker received a complaint from tenants of the property regarding the problematic operation of the solar hot water system in the premises. There was no evidence from the agents or from those tenants to describe the precise nature of the problem with the hot water system. Mr Dick's evidence was that his tenants had complained that the system had been running out of hot water.

Defendants' knowledge concerning problem with hot water service

Following complaints by his tenants concerning the hot water, Mr Dick's agents, L J Hooker, engaged Mr Stephens to carry out a plumbing inspection of the hot water system in order to identify the problem. Mr Dick said he had been told by the plumber that the hot water service had developed a leak. The plaintiff submitted that an inference should be drawn from the inspection of the hot water service by Mr Stephens, that in the circumstances, the plumber in question was Mr Stephens.

On or shortly before 21 November 2001 Mr Stephens attended the premises and saw Mr Joe Sama, an electrician in attendance on the premises. The plaintiff submitted that the inference should be drawn that Mr Sama was engaged by L J Hooker as agent of Mr Dick to inspect and report upon the state of the hot water service and advise on the installation of an electric hot water system if one was needed to replace the existing solar hot water system. The plaintiff submitted that there would have been no other reason for Mr Sama to be there on that occasion. Mr Stephen described seeing Mr Sama in the vicinity of the fuse box of the premises.

The plaintiff and Mr Dick maintained that there was no evidence that Mr Sama did anything to any of the fuses in the fuse box on the occasion of his attendance. On behalf of Mr Stephens it was submitted that it should be inferred that Mr Sama removed the fuse to allow for the hot water system to be inspected by both Mr Stephens and Mr Sama. That submission was not supported by the evidence of Mr Stephens.

There was no evidence that Mr Sama went onto the roof of the premises on the occasion of his visit. However there is evidence that Mr Stephens did so and on that occasion he personally did nothing to interfere with the electrical operation of the hot water system by way of disabling it or disconnecting it from the electricity supply although Mr Stephens said that he did turn off the water tap to the system to save water from being wasted by leakage.

Following his roof inspection Mr Stephens telephoned the agent at L J Hooker and he also rang Mr Dick who had asked him for a quotation of the cost of providing a new hot water system. That quotation, which was dated 21 November 2001, was accepted by Mr Dick. It was tendered as Exhibit "C." It is plain from the terms of the quotation that Mr Stephens was only quoting for the work involved in the disconnection of the water connections to that system as well as quoting for drainage of water from the rusted storage tank which formed part of that system.

On 23 November 2001, Mr Stephens delivered to the premises a gas hot water system to be installed at the ground level at the rear of the premises. Some part of the installation of the gas hot water system was carried out by Mr Harders who was an employee of Mr Stephens. It is claimed by Mr Stephens that either he or Mr Harders disconnected the water supply to the solar hot water system on the occasion of the new installation. That claim is disputed by the plaintiff and also by Mr Dick. They pointed out that Mr Stephen was unable to identify where on the photographic evidence the claimed capping of the pipes had been carried out to terminate the water supply to the redundant system. In this context it was also pointed out that hot water was still found to have been leaking from the system on the roof some 3 years later when Mr Gell and Mr Harley inspected the roof, thereby suggesting that disconnection of the water supply to the redundant system had not occurred as was quoted for, and invoiced by Mr Stephens and paid for by Mr Dick when the new gas hot water system was installed.

On the occasion of the installation of the new gas hot water system neither Mr Harders nor Mr Stephens inspected the electrical power board within the premises. Similarly, during the installation of the new gas hot water system, neither Mr Harders nor Mr Stephens took any steps to disconnect the electricity supply to the solar hot water system. This was not unexpected in the circumstances as neither of them were qualified to do so. Neither Mr Harders nor Mr Stephens had drained the water from the solar hot water system notwithstanding that such drainage had been specified in the quotation and invoice prepared by Mr Stephens.

The parties were in agreement that at the time Mr Stephens quoted for the work of installing a gas hot water system, and at the time that work was carried out, Mr Stephens did not speak to Mr Dick to specifically raise with him the need to have an electrician disconnect the electricity supply to the redundant solar hot water system on the roof. It was also agreed that no advice was given by Mr Stephen to Mr Dick as to the need to seek advice from an electrician concerning what was needed to be done in the circumstances. In this regard the Mr Stephens asserts he was under no duty to so warn in this regard particularly as Mr Stephens was a plumber.

Mr Stephens and Mr Harders installed a gas hot water service on a concrete slab located on the ground at the rear of the premises. Once that installation was complete the solar hot water system located on the roof of the premises was regarded by both Mr Dick and by Mr Stephens as being redundant.

The plaintiff and Mr Dick agreed that if advice had been given to Mr Dick to the effect that he needed to either seek advice from an electrician or that he needed to have an electrician attend and disconnect the supply of electricity to the solar hot water system, then Mr Dick would have acted on that advice and would have obtained the services of an electrician, either by arranging this himself or by arranging it through his agents. Mr Dick agreed that once he had paid the invoice from Mr Stephens for the quoted work he had acted on the assumption that all hot water issues on the premises had been dealt with.

In 2003 and 2004, at the request of Mr Dick, Mr Harley had performed a number of small handyman type tasks at the premises. These tasks included the affixing of tiles in a bathroom, fixing a tap washer and some woodwork at the front of the premises. There was no paperwork associated with these tasks and payment had been made in cash. At an unspecified point in time, Mr Dick and Mr Harley discussed the presence of some water stains in the ceiling of the upstairs hallway of the premises. In this regard it was agreed that Mr Harley would look at the roof of the premises to investigate and fix the problem.

In particular, Mr Dick stated that Mr Harley had informed him that he would investigate the possible causes of the stain in the ceiling. Mr Dick then agreed that Mr Harley would attempt to effect repairs to the roof in order to fix this problem. Mr Dick claimed that he did not approve the removal of the redundant hot water system at the initial stage of Mr Harley's work although Mr Harley had mentioned that this may be necessary. If the solar hot water system was truly redundant at that stage it is difficult to envisage a sound reason as to why it should not have been removed. No time frame or supervisory arrangements were made by Mr Dick with regard to Mr Harley's proposed work.

The plaintiff claims that the removal of the redundant hot water system, either permanently or so as to better fix leaking bolt holes at its base, was within the scope of the work that was discussed between Mr Dick and Mr Harley. Mr Dick disputes that this was so and claims that he and Mr Harley only discussed the possibility of removing the solar panel but only in the context that this might be required if sealing around the bolts at the base of the roof mounted storage unit stand was not effective in dealing with the leak. In this regard Mr Dick claims that no instructions were given to Mr Harley to remove the solar hot water service and he claims that neither was any agreement reached that Mr Harley would proceed with any work in that regard without further recourse to Mr Dick, who asserted that Mr Harley was not authorised to remove the solar hot water system.

The plaintiff pointed out that it is not possible to test Mr Dick's account of these events in the absence of an account from Mr Harley or from some other witness. The credibility of Mr Dick's evidence on these and other matters was challenged by the plaintiff.

Whatever view Mr Dick had of the last critical conversation he had with Mr Harley, it is clear that he envisaged that Mr Harley would be performing some type of dismantling work on the roof to seal it and that this would have necessarily involved some component parts of the redundant solar hot water system, otherwise it would not have been possible for Mr Harley to carry out his investigations with the aim of then applying a silicone seal around the mounting bolts at the base of the unit.

The plaintiff claims that due to the alleged flawed recollections of Mr Dick, is not possible to determine precisely how many conversations regarding the work to be done on the roof took place between Mr Dick and Mr Harley, nor it possible to determine the times at which those conversations took place or indeed the precise contents of those conversations.

In this regard, Mr Dick was adamant that in none of the conversations with Mr Harley, did he instruct or authorise removal of the solar hot water service. He claims that he had no knowledge that Mr Harley was on the roof on the day of his death and had no knowledge that he was attempting to remove the solar hot water service on that occasion, if that was what Mr Harley was in fact doing.

At least one of the conversations that took place between Mr Dick and Mr Harley was initiated by Mr Dick. This involved Mr Dick following up Mr Harley to ascertain when he would complete the required work. In my view, apart from providing confirmatory evidence that Mr Dick was content to trust Mr Harley to make his own arrangements as to the timing of the works without the need for supervision or instruction, nothing else of significance turns on this fact.

The Gell and Harley inspection in September/October 2004

In about late September or early October 2004, Mr Harley and Mr Gell inspected the solar hot water system on the roof. At this time Mr Gell observed water to be leaking from a pipe that was steaming and which was also hot to touch. A conversation then ensued between Mr Gell and Mr Harley. At the trial, Mr Gell gave account of that conversation. This evidence was in summary or conclusion form and was to the effect that there was a risk of working on the hot water system whilst it was potentially still electrified. That evidence in summary and conclusion form has to be viewed in the context of a factual statement that Mr Gell gave to the investigating police in 2004. That was likely to be more accurate than his recollection at the trial.

Mr Gell said that he had observed Mr Harley to make a call on his mobile telephone. Both the plaintiff and Mr Stephens submitted that the overwhelming inference from this evidence is that the call was made to Mr Dick and not to an electrician or another party.

At the trial Mr Gell acknowledged that he had an imperfect recollection of these events and he said he had not heard the whole conversation. The plaintiff and Mr Stephens asserted that the conversation in question involved the topics of the roof and electricity but Mr Dick disputed this and claimed that Mr Gell was not able to hear what was said in that conversation.

The events of 23 October 2004 and the death of Mr Harley

On the morning of 23 October 2004 Mr Harley left his home in order to work on the roof of the subject premises. He was seen by Mr Sams to be working on the roof of the premises that morning in conjunction with a significant flow of water coming from the roof. Later Mr Harley went home for lunch.

The evidence of the plaintiff was that at about 2:30pm on that day Mr Harley returned home, changed into shorts and a T-shirt and then returned to work at the premises. This evidence was contained in a statement made by the plaintiff to the investigating police and also in a record of interview taken by the police which comprised Exhibit "A.11". There, the plaintiff recounted that Mr Harley had said something to her to the effect that he had to call an electrician.

Later on that day Ms Symonds opened the back gate of the premises to allow Mr Harley to obtain access to the roof. There were some minor discrepancies as to time of this event but I do not consider this to be significant. Later on that day Ms Sams observed Mr Harley to be present on the roof of the premises wearing white overalls. She had observed that there had been some noise and some "thumping about". It was suggested from these facts that the hot water system had fallen over and that water was overflowing the gutter from a water supply.

At an unknown time on the afternoon of 23 October 2004, Mr Harley died whilst he was on the roof of the premises. It was agreed that the cause of his death was by electrocution. The source of the electricity that had electrocuted him was the electricity that was then still connected to the redundant solar hot water system. The precise sequence and mechanism of the events that surrounded Mr Harley's death was not witnessed by any person and these events remain unknown. The precise mechanism by which the electrocution occurred, including the electric current flow pathway and contact point on Mr Harley's body for the passage of the electric current that fatally injured him is not known.

It remains unclear as to precisely what Mr Harley was doing and precisely where he was at the time he was electrocuted. Associate Professor Blackburn has postulated that Mr Harley had somehow turned on the water supply and refilled the tank causing it to fall off its mounting stand. Whilst that is a possible and indeed plausible explanation it is not the only one and it is not possible to conclude that this was the mechanism although it does provide a potential explanation for the electrocution involving water as a conductor.

There was a factual investigation undertaken by police and Workcover inspectors. Whilst those investigations undoubtedly fulfilled the formal requirements of those agencies, the tendered parts of the products of those investigations were of limited probative value as evidence in the proceedings, containing hearsay, unsubstantiated assumptions and speculation, as would be expected in an investigation of the facts surrounding an unwitnessed death. This analysis is not a criticism of the work of those agencies, but the product of those investigations highlights the different consideration that applied to those undertakings, compared to the requirements of proof, even on the civil standard of the balance of probabilities.

The defendants have argued that Mr Harley had removed the cover to the electrical panel on the storage tank of the redundant solar hot water system. This was said to be an inference arising from the appearance and the location of these items as shown in the photographs and in the police statements. This conclusion is somewhat speculative and problematic in the absence of evidence as to what was encountered and what was observed at the scene in conjunction with what is seen on the photographs.

The defendants submitted that Mr Harley had come into contact with the electrical system within the solar hot water system by physically touching it or touching it with one of his work tools in the knowledge that he was touching a live electrical connection. Whilst it is undoubtedly correct that Mr Harley had somehow come into contact with live electricity, I reject the submission that these facts necessarily require an inference that he did so knowingly. The plaintiff submits that the opposite inference is more likely in the circumstances because an experienced handyman was unlikely to knowingly touch live electricity. The plaintiff points to the earlier cited explanation of Associate Professor Blackburn as the more likely explanation.

The defendants assert that at all relevant times Mr Harley was aware that the hot water system was dangerous to work upon because it was electrified. The plaintiff disputed that assertion, which was based on inferences which the defendants sought to have drawn from the plaintiff's statement to the police which refers to Mr Harley's stated need to call an electrician. In contrast, the plaintiff maintained that it is unreasonable to draw the asserted inference in the circumstances, and argued instead that the appropriate inference to be drawn on the evidence is that Mr Dick had a conversation with Mr Harley who was then misled with regard to safety issues as a result of that conversation. Many of the inferences sought to be drawn by the parties involve matters of incompletely reasoned or unreasoned competing speculations.

The plaintiff did not give oral evidence. The credibility of her tendered statement was not challenged although there was some debate as to what liability inferences should be drawn from that evidence on the issue of Mr Harley's state of awareness of the electrical risks he faced in carrying out the work in question on Mr Dick's premises. I will deal with those inferences when recording my findings of fact on the matters in issue.

There was a contest over the interpretation of the evidence given by Mr Gell concerning his observations that impacted on the liability issues. There was no direct challenge to the credibility of Mr Gell's testimony. Instead, the debate centred around the reliability of that testimony because of concessions he made concerning his state of recollection as at the time of the trial as distinct from the time he made a statement to the investigating police.

I found Mr Gell to be a credible witness who, when giving his evidence, took obvious care to differentiate between what he could recall and what he could not recall as at the date of the trial as distinct from what was recorded in his statements that were made closer in time to the events in question. The parties made disparate submissions on the reliability of Mr Gell's testimony. I will analyse the specific matters at issue within the evidence of Mr Gell when recording the inferences I draw from his evidence concerning the factual issues to be determined. In the meantime I record my view that he gave his evidence to the best of his recollection and in a way that I considered to be truthful.

The plaintiff challenged the credibility of the evidence of Mr Dick on a number of aspects of his testimony. For the reasons that follow, I find that the plaintiff has largely substantiated the criticisms that were made concerning the credibility of Mr Dick's testimony.

I find that Mr Dick was evasively defensive in answering the questions of the investigating police and the investigating Workcover inspectors during the course of their factual investigations into the death of Mr Harley. I find that he did so in order to deflect potential criticisms from being made against him concerning any responsibility that may have been thought to rest with him concerning the death of Mr Harley. I also consider that despite his denials, he adopted a similar approach to the evidence he gave in these proceedings. I find that he did so in order to shape his evidence to best fit his defence of the plaintiff's claim against him.

I also find that Mr Dick was disingenuous in his denial of any awareness that the redundant solar hot water system on the premises had an electrical connection. I base this conclusion on divergent answers he gave when questioned on the issue. On the one hand he said he did not appreciate that the system had an electrical connection, representing that position as his considered view when in fact, as he later conceded he gave the matter very little if any thought. In my view, I consider that Mr Dick's denial of knowledge of an electrical connection was motivated by a desire to deflect criticism from himself concerning potential liability on his part for the death of Mr Harley.

I observed that Mr Dick was able to give specific evidence where it suited his case for him to do so, and in contrast he claimed a lack of knowledge and recollection where it did not suit his case to give specific evidence. I found his "I don't know" answer to the question as to why, in January 2009 he had been able to recall an alleged conversation with Mr Harley which he had 3 years earlier despite not referring to that conversation in thorough and detailed interviews with the police and with a Workcover inspector, to be disingenuous. I found his explanation for not raising that asserted recollection with his lawyers for some months until the day before he gave his evidence to be somewhat glib and unconvincing. That view was reinforced by his later concession that the conversation in question could have been something he had made up in his mind.

I found Mr Dick's references to Mr Harley not being authorised by him to remove the redundant hot water system to be gratuitous, self-serving and unconvincing in the context that he had left it to Mr Harley to scope the work required to fix the leak. I consider Mr Dick's evidence in this regard to have been put forward in order to deflect criticisms directed at him, knowing his evidence in this regard could not be contradicted.

I accept the submission made by the plaintiff that Mr Dick's statements to the investigating police were either not complete or forthcoming and were designed to distance himself from knowledge of the circumstances of Mr Harley's death. In these circumstances I find myself unable to rely upon the self-serving and exculpatory aspects of his evidence of denial of knowledge of the electrical connection to the redundant hot water system and his assertions that he did not authorise the removal of the redundant hot water storage tank. I consider that Mr Dick structured the latter evidence on his mistaken belief that Mr Harley was in the course of removing or taking down the tank because he had not considered or had possibly declined to consider that the tank had fallen rather than having been partially dismantled as he asserted. He was the only person who described the structure as having been pulled to pieces, conveying the impression of a dismantlement of the structure rather than the structure having collapsed and having fallen.

The plaintiff also challenged the reliability of the testimony of the testimony of Mr Stephens. I find that Mr Stephens generally did his best to relate his evidence in a truthful manner, especially insofar as he ultimately candidly explained why it was that he chose not to discuss electrical matters with Mr Dick during the course of his dealings with Mr Dick, namely that he was a plumber and not an electrician. However I find that the reliability of the evidence Mr Stephens gave on other issues was undermined by a number of critical matters that affected the resolution of important issues in the case.

I consider that much of the detail of the evidence of Mr Stephens, when explored, was found to have been based on assumptions he had made rather than being based on his personal recollections. It was apparent from his evidence that Mr Stephens engaged in reconstruction of his evidence rather than basing it on actual recollections. An example was his initial evidence concerning having capped the water pipes on the roof. Other examples were his evidence of turning off the tap for the water supply to the system and initially not differentiating his own work from that carried out by his employee Mr Harders. Another example was his evidence concerning his claimed observations concerning the activity of Mr Sama at the fuse box, initially claiming to have seen Mr Sama doing work there and then subsequently agreeing that he had not seen such work as earlier described.

I consider that there was an aspect of the evidence of Mr Stephens which reflected poorly on his credit as a witness. This concerned his initial refusal to concede that it was dangerous and hazardous to leave a live electrical connection running to a defunct hot water system. That stance was based on the proposition that he was a plumber and not an electrician. I find that stance to have been a remarkably unrealistic one for a tradesman to adopt. That stance did not sit well with his evidence that he was aware of electrical issues, evidenced by the fact that he carried volt meters amongst his tools. It also did not sit well with his ultimate concessions that it would have been appropriate to advise Mr Dick of the fact that the redundant solar hot water system had a live electric current running into it. That concession did not sit well with his evidence that he consciously refrained from raising electrical matters with Mr Dick.

I find that I cannot accept as reliable, the evidence Mr Stephens gave to the effect that the water connections to the redundant solar hot water system were disconnected and capped with screw capping before he sent his invoice to Mr Dick on 26 November 2001 and by which he charged for that work. I also find that the evidence Mr Stephens gave concerning the detail of the decommissioning work on the solar hot water system and the installation of the new gas hot water system was largely based on hearsay considerations relating to the work of his employee Mr Harders, rather than being based upon his own observations and as such was inaccurately reconstructed. I consider that this analysis undermines the factual reliability of that evidence. This problem also served to undermine the factual foundations of the report of Associate Professor Blackburn, whose factual assumptions have been shown to be inaccurate insofar as they were dependent upon assumptions provided to him based upon the asserted recollections of Mr Stephens.

Accordingly, for these reasons, I consider that I cannot totally rely upon the evidence of Mr Stephens in determining the issues in dispute in these proceedings.

In the paragraphs that follow I set out my analysis and findings concerning the facts and issues that arise for determination in these proceedings.

Issue 1 - whether the electricity supply continued to remain connected to the redundant solar hot water system

As a result of the material that came to light during the police investigation concerning the circumstances of the death of Mr Harley, in my view it has been plainly established that the electricity supply of the premises had remained connected to the storage unit of the redundant solar hot water system after the installation of the gas hot water system had occurred. Ultimately there was no real dispute between the parties on this issue however I set out my findings on the point as they relate to other issues calling for decision.

I consider that such a conclusion is confirmed by the evidence of Mr Gell. Several weeks before Mr Harley's death, Mr Gell and Mr Harley inspected the rooftop of the premises. At the time Mr Gell was able to see hot water and steam escaping from a pipe connected to the apparatus of the solar hot water system. It was also apparent from Mr Gell's observations, which I accept, that wires were connected to, and were running off. the hot water tank. Those wires have since been identified to be electrical wires. Mr Gell said, and I accept, that when he took the opportunity to feel the pipes of the solar hot water system on the occasion of his inspection, he saw that the pipes were connected to the apparatus and he detected that the pipes were hot to his touch.

I infer from Mr Gell's evidence and from the fact that Mr Harley was subsequently electrocuted, that the heat and steam that Mr Gell had observed to be present was due to a continued active and live electrical connection that remained between the electricity supply to the premises and the redundant solar hot water system on the premises. There was no evidence called to suggest that this electrical connection had ever been disconnected from the electricity supply after the time of Mr Gell's observations and before the time when Mr Harley was electrocuted. In these circumstances I consider that it is reasonable to draw the inference to support the finding that the electricity continued to remain connected to the solar hot water system in the interim, and that this connection was live and active at the time Mr Harley died.

I therefore find that after the new gas hot water system had been installed at Mr Dick's premises the electricity had remained connected to the water storage unit of the redundant solar hot water system on the roof of the premises. I also find that this position had remained so when Mr Harley commenced working on the roof on the day he died. The responsibility for this continued electrical connection remains to be analysed.

Issue 2 - first defendant's awareness of continued electrical connection to the redundant solar hot water system

The first defendant, Mr Dick, submitted that he was not aware, nor should he be taken to have been aware, that the electricity supply had remained connected to the redundant solar hot water storage system after the gas hot water system had been installed. I do not accept that submission for the reasons that follow.

Mr Dick was aware that plumbing work was being carried out to install a new gas hot water system because of problems due to previous hail damage occasioned to the older roof mounted solar hot water system that was found to be not working properly. Mr Dick was aware that the new installation required plumbing work to be carried out to disconnect the plumbing to the old system. This is evident from the terms of the quotation comprising Exhibit "C" which the plumber, Mr Stephens, addressed to Mr Dick.

In my view there is no evidence, from within that quotation prepared by Mr Stephens, or otherwise, that would reasonably suggest that in the circumstances, electrical disconnection work would be legitimately carried out by a plumber at the same time as he did plumbing work to disconnect the water pipes leading to and from the solar hot water system unless he was duly licensed to carry out electrical work. Further, the invoice from Mr Stephens, which was prepared after the plumbing work had been carried out, gave no indication that could reasonably suggest that any electrical work would, or had been, carried out by Mr Stephens at the time of the changeover of hot water systems.

In my view it cannot be reasonably inferred, without evidence, that the carrying out of plumbing work on the premises to connect a new gas hot water system, including work to disconnect the water pipes to the redundant system, as was specified in the quotation and later confirmed by the invoice from Mr Stephens, necessarily gives rise to a reasonable belief on the part of Mr Dick that electrical work had also been carried out on the redundant solar hot water system at the same time as the plumbing work so as to disconnect the solar hot water system from the electricity supply.

Mr Stephens has stated, and I accept, consistent with the documents that came from him, that he did not speak to Mr Dick about the electrical issues that might have arisen in connection with the work he was required to carry out with the installation of the new gas hot water system. I accept the explanation proffered by Mr Stephens for his stance in this regard, namely, that he was a plumber and not an electrician.

From the foregoing it is apparent that there was nothing within the communications between Mr Stephens and Mr Dick that would have reasonably led Mr Dick to believe there was no live and active electrical connection to the redundant solar hot water system. It is therefore relevant to examine Mr Dick's state of knowledge of an electrical connection having regard to other relevant considerations.

Mr Dick claimed that in 2004 he was unaware that the solar hot water system on his property had an electrical connection. He said he assumed that the way the system worked was a result of heating from the sun. Mr Dick acknowledged that from his past experience as a motor mechanic, and from his own experience with activities of day-to-day living, he had some experience with electricity. He stated that before Mr Harley's death he did not give a moment's thought to the question of whether or not a solar hot water system had something within it, which I take from the context to refer to electrical power connections and electrical heating elements, as a backup to the heating effect from the sun. I consider that his evidence in this regard was disingenuous and structured to seek to avoid liability in this case. I take that view because it is inconsistent with his earlier inspection where he saw wires on the roof relating to the solar hot water system. It was also inconsistent with his "nosey" interest in matters concerning the state of the property and the work required to be done on the property.

Mr Dick stated that Mr Stephens had told him in November 2001, following his inspection, that the solar hot water system was beyond repair. This led to Mr Stephens' recommendation for a replacement system for which a quotation was prepared and accepted. Mr Dick stated that he understood that by replacing the existing system with a new gas hot water system, the rooftop unit would become redundant.

Consistent with the evidence given by Mr Stephens, Mr Dick stated that Mr Stephens had not advised him of the need for an electrical disconnection to be arranged in respect of the redundant system. Mr Dick agreed that in his discussions with Mr Harley regarding the scope of the work that he wanted Mr Harley to carry out, they discussed the possibility that the whole of the roof mounted hot water system may have to be pulled down in order to effect the required repairs to the leaking roof because of the siting of the mounting bolts on the roof. Mr Dick also stated that he did not give the question of the scope of the work much thought.

In my view this evidence did not sit comfortable with his evidence that he did not authorise Mr Harley to remove the unit. In my view the arrangement Mr Dick had with Mr Harley was one in which he entrusted Mr Harley to do whatever handyman work Mr Harley considered was necessary, without consultation or supervision, unless significant expense was involved. I infer this from the follow-up telephone call he made to Mr Harley to enquire of progress of the work after some weeks of leaving Mr Harley to attend to the job whenever he found the time to do so.

Mr Dick stated that he spoke to the plumber directly regarding the changeover of the system from solar to gas and he thought the plumber was co-ordinating the job.

Mr Dick denied having had a conversation with Mr Harley shortly before the incident in question wherein Mr Harley suggested that it was necessary to obtain the services of an electrician. In this regard, his evidence was: "Q. There wasn't a conversation where he suggested that it was necessary to get an electrician out? A. No.

Q. You never supplied him with any reassurance that an electrician wasn't necessary and the system wasn't electrified? A. No, I wouldn't know."

In order to support a finding that Mr Dick held a reasonable belief that the electricity supply to the redundant solar hot water system was not connected or had been disconnected at the time of, or around the time of the installation of the new gas hot water system, the burden is on him to prove the proposition upon which he relies.

As to whether there was a disconnection of the system, proof of that proposition could be in the form of an invoice or a payment record detailing the work involved that could support such an inference, or evidence of having sighted such records, or it could be in the form of admissible oral evidence as to conversations that could give rise to the contended inference, if not evidence from someone who had observed the work being carried out, or from someone who had in fact carried it out. Instead, all of these elements were absent. Accordingly, on the state of the evidence, I do not draw the inference sought by Mr Dick.

The version of Invoice 92 from Mr Stephens addressed to Mr Dick refers amongst other things, to "existing hot water service disconnected and drained - all work done as required by quote No 13". Mr Dick did not say that he interpreted that invoice as including an electrical disconnection of the redundant solar hot water system. The quotation to which this invoice referred made it quite clear that the disconnection work to be undertaken by Mr Stephens was to be limited to disconnecting the water supply to the redundant system. In any event, Mr Dick did not say he was misled by this invoice.

Mr Dick conceded that he had never supplied Mr Harley with any reassurance that the services of an electrician was not necessary, or that the system was not electrified. I consider that if Mr Dick had given the matter proper consideration he should have realised, there may be, at the very least, or there was in fact, an electrical connection, evidenced by the presence of electrical wires connected to the system, such that the circumstances merited advice from an electrician in the interests of safety.

There is evidence that Mr Joe Sama, an electrician who was sometimes engaged by Mr Dick's agent L J Hooker, had been seen on the site by Mr Stephens at some time prior to Mr Harley's death. Without evidence being called from Mr Sama, or without evidence called from someone who had observed Mr Sama carry out electrical work to effect a relevant disconnection, I am not prepared to draw an inference that Mr Sama in fact carried out any electrical work, including any work on the redundant solar hot water system on the occasion that he was seen there. I take this view because such an inference is inconsistent with the observations of Mr Gell and it is inconsistent with the fact of the electrocution of Mr Harley. In the circumstances, such an inference would in my view amount to unwarranted mere speculation : Luxton v Vines [1952] HCA 19 at [8]; (1952) 85 CLR 352 at p 358. I consider that the evidence placing Mr Sama on the site is consistent with Mr Sama being asked to provide a quote for a replacement electrical hot water service rather than to carry out electrical work.

In assessing the credibility of Mr Dick's denial of any knowledge as to an electrical connection between the solar hot water system and the domestic electricity supply, I find that denial difficult to accept for a number of reasons.

First, on Mr Dick's description of his observations of the roof of the premises after the 1997 hailstorm, consistent with his self-description of him being "nosey" and checking on details of the probity of the insurance claim, I consider that on that occasion Mr Dick must have seen the presence of the wires described by Mr Gell. It must have been plain to him that these wires were electrical wires. In my view those circumstances ought to have reasonably raised in Mr Dick's mind that there was an electrical connection to the system. If in fact he did not see the wires, in my view he ought to have seen them and he should have noted their significance.

Secondly, even allowing for some scope for variations within the seasonal Sydney climatic conditions from year to year, I consider that a reasonable person in Mr Dick's position would have known that a significant number of rainy, cloudy and overcast days inevitably occur within those climatic variations. In this regard I consider that with even modest daily rates of use of domestic hot water in the residential setting, Mr Dick must have known that the solar hot water unit required and in fact had an electrical connection for backup of solar heating.

Thirdly, I found Mr Dick's evidence wherein he claimed an absence of such knowledge as to the existence of an electrical connection between the electricity supply and the roof mounted redundant hot water system to be simply unconvincing and designed to try and deflect legal liability away from himself. Evidence of this motivation is the claimed recollection of a telephone conversation with Mr Harley which he recalled some months before the trial yet he only raised it with his legal advisers on the day before he gave his evidence, some four years after Mr Harley's death, knowing that his evidence concerning this call could not be contradicted due to the death of Mr Harley.

Accordingly, for the reasons I have outlined, I reject Mr Dick's evidence to the effect that he was unaware that there was an electrical connection to the solar hot water system at the time of Mr Harley's death. I also reject his evidence that he thought the solar hot water system was powered only by the sun.

I find that at the time Mr Dick arranged for the plumbing work to be done by Mr Stephens for the installation of the new gas hot water system, and after that installation work had been completed, Mr Dick knew and must be taken to have known that there was a remaining live and active electricity connection to the redundant hot water system on the premises. I find that Mr Dick had no reasonable basis for believing that the electricity supply to the redundant electrical hot water system had been disconnected simply by reason of the fact that a new gas hot water system had been installed by the plumber, Mr Stephens.

Furthermore, I consider that a reasonable person in the position of Mr Dick ought to have known that the electrical supply to the redundant solar hot water system had remained live and active following the installation of the new gas hot water system.

Issue 3 - whether the first defendant had a legal duty to ensure the electricity supply to the redundant system was disconnected

The question arises as to whether Mr Dick was under a legal duty to ensure that the electricity supply to the redundant solar hot water system was disconnected.

The starting point of the analysis is Mr Dick's knowledge of the events of the installation of the gas hot water system. In my view, within those events, and on the evidence describing Mr Dick's involvement in those events, there was no reasonable basis upon which Mr Dick could have rationally thought, other than as a result of carelessness in his thinking, that the installation of a new gas hot water system by a plumber at ground level on the premises, necessarily meant that the electricity supply to the roof mounted solar hot water system had been disconnected.

I consider that at the time the replacement hot water system was being discussed between Mr Dick and Mr Stephens, Mr Dick either knew or ought to have realised that he had never been told of, or had never seen evidence of, the disconnection of the electricity supply to the redundant roof mounted system. I infer from the format and the terms of the statements he received from his letting agents that if his agents had arranged for this type of electrical work to be carried out, he would have seen evidence of it.

Mr Dick did not himself take any steps to disconnect the electricity to the redundant hot water system. There is no evidence that Mr Dick had paid an electrician to disconnect the unit from the electricity supply. It is plain that only a licensed electrician could have legally carried out such a disconnection for simply pulling out a fuse from the fuse board, if that was considered to be an option, would have been an unsatisfactory arrangement because someone could unwittingly reinsert the fuse and by inadvertence, create a situation of potential danger. In my view, there was nothing in the documentation Mr Dick received from Mr Stephens, as understood by Mr Dick that would have reasonably led him to believe the electricity to the redundant hot water system had or would have been disconnected.

Once it is recognised that Mr Dick was never in a position to believe, reasonably, that the electricity supply in question had been disconnected, I consider that it follows that he was under a legal duty to do something about achieving a permanent disconnection of that electrical connection as it was on his property and he was the responsible occupier. This could only be legally achieved by employing an electrical contractor : Electricity Safety (Electrical Installations) Regulations 1998.

It was against that background that Mr Dick engaged the services of Mr Harley. He knew Mr Harley would be working on the rooftop on or around the bolts that attached the redundant hot water system to the roof in order to stop a leak. He also knew that Mr Harley was not qualified to deal with an electrified hot water system. He also knew, using the words of s 5B(1)(b) of the Civil Liability Act 2002, that the prospect the frame or base mounting of the system may require some manipulation of some of its parts, at least at the mounting points where a leak was detected, was not an insignificant one.

In my view it was foreseeable that to some degree, the stability of the roof mounted solar hot water system may have needed to be altered by removing and working around the mounting bolts and related structures in order to seal the leak. If the redundant system remained electrified, this could create the risk of electrocution. It was foreseeable that if the mounting bolts were moved or removed for the purposes of Mr Harley's work, a part or parts of the redundant solar hot water system might become unstable and collapse thereby creating the risk of electrocution if the power remained connected.

The precise mechanism of electrocution need not have been foreseen in all its details. It was not necessary to show that the particular manner of occurrence of the incident and the electrocution were probable. It is sufficient to demonstrate that the incident was of a class of possible occurrences that might well be anticipated as one of the reasonable and probable results of a wrongful act : Chapman v Hearse [1961] HCA 46 at [6]; (1961) 106 CLR 112 at p 120, citing Haynes v Harwood (1935) 1KB 146.

I find that from Mr Dick's perspective and state of knowledge he ought to have had of the wiring to the redundant solar hot water system, the possibility of electrocution of Mr Harley was a not an insignificant risk. It was therefore a foreseeable risk associated with the work Mr Dick had requested be undertaken by Mr Harley.

In these circumstances I consider that according to general law principles a duty of care arguably arose on the part of Mr Dick.

In those circumstances, Mr Dick's options appear to have been, first, to enquire of Mr Stephens, or someone with the requisite knowledge, as to what should be done about the electricity connection to the redundant hot water system; secondly, engage an electrician, either by himself or through his managing agents, to arrange for an inspection of the electrical installations on the premises in order to obtain advice and to have any required disconnection work both identified and attended to; or thirdly, to do nothing.

The third option of doing nothing, knowing that Mr Dick could not reasonably be satisfied that the electricity supply to the redundant hot water system had been disconnected, was in my view an unacceptable option to adopt in the circumstances.

I take that view because Mr Dick did not use the subject premises as his own residence. Instead, he used them for commercial purposes, namely he rented them out to tenants. I consider that in those circumstances a threshold duty of care arose on his part to take reasonable steps to ensure all the electrical connections to installations on the premises were safe, particularly since modifications had been made by Mr Stephens to the system of hot water supply to the premises because of the reported ineffective operation of the solar hot water system. In such circumstances I consider that a threshold argument has been established to demonstrate the existence of a duty of care that was owed by Mr Dick to a range of persons who were foreseeably likely to carry out a variety of kinds of work in the vicinity of electrically connected installations on the premises, wherever situated, but especially on the roof of the premises.

In my view such a duty derives from a well recognised, refined and restated historical line of authorities concerning the applicable general law principles : Donoghue v Stevenson [1931] UKHL 3; (1932) AC 562 per Atkin LJ at [3], p 580; Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 per Mason J at [1], p 44.

In addition to these general law principles, considerations arising from the provisions of the Civil Liability Act 2002 must also be taken into account in determining the question of the existence of a duty of care.

The Act provides that a risk is foreseeable if an ordinary person either knew or ought to have known of it and that such risk was not insignificant : s 5B(1)(a) and (b) of the Act.

In the context of this case I do not consider this statutory requirement to be materially different to the test propounded by Mason J in Wyong Shire Council v Shirt at [15], p 48, namely: "The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."

On behalf of Mr Dick it was argued, citing Fleming, Law of Torts, 9th Ed, that in circumstances where a homeowner employed an independent contractor to carry out work on premises, the homeowner may expect the contractor to guard against special risks involved in the job : Fleming pp 510 - 511. Whilst that general statement is correct, it has no blanket application in this case because Mr Dick was not just a homeowner. He was a commercial lessor of residential premises who ought to have foreseen the risk and in my view he should have done something about it. In this case it is no answer for Mr Dick to say he engaged Mr Harley as an independent contractor as Mr Harley was not an electrician and there is no evidence that Mr Dick gave Mr Harley any relevant warnings or information. Instead Mr Dick proceeded upon the basis of erroneous assumptions concerning the status of the electrical connection to the redundant solar hot water system.

In arguing that he owed Mr Harley no duty of care, Mr Dick also relied upon the proposition that he was entitled to entrust to Mr Harley the task of making appropriate provision for his own safety : Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267; per Heydon J at [52], and also Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7 per Brennan and Dawson JJ at p30. In my view the argument advanced on behalf of Mr Dick overlooks an important difference between this case and the position in Kolodziejczyk, namely, in that case Heydon JA emphasised that the danger was "the reverse of hidden", that is, it was plain : Kolodziejczyk at [52]. Furthermore, in Papatonakis the following tellingly distinguishing statement relevant to this case was made by Brennan and Dawson JJ at [30]: "… It is one thing to leave it to an independent contractor to decide for himself how to do his work, it is another thing to leave him in ignorance of a fact that is material to his decision, if he, using reasonable care, might not discover that fact."

Here, Mr Harley was in that same position. He was not an electrician. He was working on and about what he reasonably thought was a redundant solar hot water system. Implicit in that description is the reasonable assumption that, because the system was defunct, it was not connected to the electricity supply. In those circumstances the existence of the active electrical connection was not discoverable by Mr Harley yet its existence was in the actual and imputed knowledge of Mr Dick. In those circumstances, it defies commonsense and accepted legal principle, to suggest that Mr Harley was owed no duty of care by Mr Dick.

Papatonakis was a case where the occupier had created a hidden hazard. In any event I consider that the circumstances in this case are materially different to those cited in Kolodziejczyk and Papatonakis because, in scoping Mr Harley's work, Mr Dick's thinking did not allow for the prospect of electrical work being necessary when it was reasonably foreseeable that it was necessary. Furthermore, Mr Dick gave Mr Harley no warnings or information concerning electrical matters upon which Mr Harley could make informed judgments concerning his own safety, especially where he did not have electrical qualifications. It could not therefore be reasonably said that Mr Harley was accustomed to meeting and safeguarding himself from risk of the kind contemplated here and which was encountered in the course of his work for Mr Dick on this occasion. The position is also very different to that of an owner builder, as was referred to by Mr Dick in citing Bhambra v Roet [2003] NSWCA 393. This was so especially where Mr Dick must be taken to have known of the existence of the electrical connection.

I therefore reject the arguments raised on behalf of Mr Dick concerning the assertion that he had no relevant duty of care.

For the foregoing reasons I therefore conclude that Mr Dick had a legal duty of care in connection with the changeover from a solar hot water system which was to become redundant, to a new gas hot water system. The scope and content of that duty of care requires further examination. Before undertaking that examination I will address the question of whether a relevant duty of care also applied to Mr Stephens in the circumstances.

Issue 4 - whether after installing the new gas hot water system, the second defendant was under a legal duty to advise the first defendant of the need to disconnect the electricity supply to the redundant solar hot water system

I consider that the question of whether, after 21 November 2001, following the installation of the gas hot water system, Mr Stephens was under a legal duty to advise Mr Dick of the need to disconnect the electricity to the redundant solar hot water system, should be approached by first looking at the available evidence concerning the terms of engagement by which Mr Stephens was contracted to carry out the work required by Mr Dick and the knowledge Mr Stephens had concerning the possible consequences of him not giving Mr Dick advice on this issue. This evaluation must also take into account the considerations required by s 5B of the Civil Liability Act 2002.

Exhibit "C", which was the quotation dated 21 November 2001 that was prepared by Mr Stephens for Mr Dick, specified the particular plumbing work that was envisaged to be carried out at premises by Mr Stephens. After describing details of the supply and installation of the new gas hot water system, the quotation went on to include the following description: "Disconnect hot and cold water only to existing H.W.S. and drain".

It is plain from the clear language used in the specifications to that quotation, that insofar as Mr Stephens was concerned, the plumbing work that he understood he would be carrying out on the redundant solar hot water system would be limited to only disconnecting the hot and cold water pipes and to the draining of the storage tank of the unit. There is no mention in the quotation from Mr Stephens of any form of electrical work whatsoever. From the terms of the quotation alone, it would be inappropriate to find that the carrying out of associated electrical work to disconnect the system from the electricity supply should be implied into the arrangements.

I am reinforced in that view following a consideration of the evidence given by Mr Stephens to the effect that as a plumber, and because he was not an electrician, he made no effort to speak to Mr Dick about the remaining electrical connections to the redundant solar hot water system. I consider his evidence in that regard to have a practical ring of truth about it and I accept it as the fact of what occurred, or more accurately, what did not occur.

However, a consideration of the terms of the engagement of Mr Stephens is only the starting point of the evaluation of whether or not a duty of care was owed by Mr Stephens to advise Mr Dick of the need to disconnect the electrical supply to the redundant solar hot water system.

Mr Stephens was a licensed plumber and as such, he must be taken to have possessed the requisite skills for assessing and carrying out the plumbing work required in the course of replacing electrical hot water systems, including electrically connected solar hot water systems. I find this to be so even though he said that his experience in solar hot water systems was limited. I infer this from the circumstances of his quotation and I find that otherwise, he would not have quoted for the plumbing disconnection of the solar hot water system in the terms within Exhibit "C" which incorporated his view of the extent of the work required to only disconnect the plumbing from the redundant system. In my view this implies that he recognised that there was electrical work involved as well, but he was not including that work in his quotation.

I also infer that from the quotation from Mr Stephens, and his use of the word "only" to refer to the disconnection of the water connections to the system, it would have been apparent to him that the solar hot water system that was intended to be made redundant was in fact still actively connected to the live electricity supply by the presence of wiring. I also infer from his qualification as a plumber that he would have also known that a solar hot water system operated by being connected to an electricity supply. In his evidence he in effect acknowledged these matters. I consider that in these circumstances he would have realised that after the quoted plumbing work was completed, an active and live electrical connection would remain unless steps were taken to disconnect the electricity supply to the system.

Mr Stephens has argued that because he was a plumber, and because he had been engaged to fit a new gas hot water heater to the premises, and his only other specified work was to disconnect the hot and cold water pipes to the redundant system and to drain that system, he was not under a legal duty to advise as to the need for electrical work to be carried out on the redundant solar hot water system. Mr Stephens also argued that he did nothing on the premises that increased the risk of injury to Mr Harley.

In my view these arguments are flawed because it was and must have been plain to Mr Stephens that the redundant solar unit remained connected to the electricity supply and he had not been given any basis upon which to assume that an electrician was engaged to decommission any electrically connected part of the redundant solar installation. It must have also been obvious to Mr Stephens that more than just "only" plumbing work was required on this job otherwise he would not have used the qualifying word "only" in his quotation. I consider that in these circumstances Mr Stephens must have known that it was foreseeably unsafe and unwise to leave a live and active electrical connection in place after disconnecting the plumbing to the redundant solar hot water system.

I consider that the fact that Mr Stephens clearly understood that he was to decommission the redundant system by disconnecting only water pipes and draining the redundant water tank carried with it a concomitant obligation on his part to advise either his customer Mr Dick, or Mr Dick's agent, of the need for a licensed electrician to complete the decommissioning process by disconnecting the electricity supply to the unit, notwithstanding that he had specifically refrained from giving such advice.

I consider that a prime reason for the existence of that concomitant obligation is immediately apparent : a redundant system, supposedly disconnected from its water supply but still remaining connected to the electricity supply, could at the very least foreseeably pose a domestic electrical fire hazard. It could also represent a safety hazard to anyone who, whilst working on or around the decommissioned unit, was unaware of the live and active status of the electrical connections to the unit. This included someone who carried out work in the vicinity of the unit in the mistaken belief that the electricity supply to the unit had been disconnected.

I consider that such persons could foreseeably come from a diverse range of occupations, for example, painters, roofers, plumbers, demolishers or general handymen carrying out a broad range of odd tasks that fell between the trade demarcations, as was the case with Mr Harley in this instance.

I come to these views based on the same analysis of the general law and Civil Liability Act factors as outlined in my consideration of Issue 3. In this regard, in addressing the required statutory analysis of foreseeability from the perspective of Mr Stephens, I consider that the potential for injury or death from electrocution was a risk that was liable to affect a diverse range of potential workers on the site. I consider that an ordinary person in the position of Mr Stephens would have considered it to be a reasonable foreseeable and not insignificant risk in the circumstances : s 5B(1)(a) and (b) of the Act. I also consider that this should have been apparent to Mr Stephens at the time he installed the new gas hot water system and at the time he sent his invoice to Mr Dick upon the completion of his involvement in the project.

I come to this view notwithstanding the evidence given by Mr Stephens to the effect that on the occasion of his visit to the site and before he issued his quotation, he said he saw that the electrician he knew to be Mr Sama, had also attended the site.

Mr Stephens described seeing Mr Sama at the switchboard. Mr Stephens did not himself take a look at the switchboard. Properly understood, his evidence concerning a fuse being pulled out of the fuse box was based on an assumption and was not based on something within his own direct knowledge and accordingly I consider that it had no probative value. In this context Mr Stephens ultimately conceded he did not notice anything about the fuse.

Mr Sama was not called to give evidence to clarify what might have been the case with the fuse or with the electrical connection in question. In those circumstances I am not prepared to draw an inference that something was done to disconnect the power supply to the redundant solar hot water system on the date that Mr Stephens saw Mr Sama on the site. I consider that on the evidence in this case, it would be wrong and speculative to draw such an inference : Luxton v Vines. In my view, without specific evidence on the issue of any disconnection activity carried out by Mr Sama, the argument Mr Stephens seeks to make gains no assistance from the evidence concerning the presence of Mr Sama at the site.

I am satisfied that the nature and extent of the involvement of Mr Stephens in the events gave rise to a duty of care on his part. I find that Mr Stephens was under a legal duty to advise Mr Dick of the need to disconnect the electricity supply to the redundant solar hot water system. I consider this to be so because he could not have himself legally carried out electricity disconnection work and for him to deliberately do or say nothing about the continued electrical connection in the face of knowledge on his part that the connection remained live and active posed a significant risk to the safety of others. These circumstances necessarily required that a qualified electrician be consulted for advice and assistance with that task. I consider that in these circumstances it was the duty of Mr Stephens to draw that fact to the attention of Mr Dick. This view is supported by the opinion of Mr Armstrong, who thought it was the plumber's duty to advise in this regard : Exhibit "A" page 92. Mr Armstrong's opinion was also supported by the opinion of Mr Carmody who stated that it would have been prudent for the installing plumber to call in a qualified electrician to ensure that the hot water system was properly disconnected from the electrical power : Exhibit A p 106 at [535]. Ultimately, in hindsight, Mr Stephens conceded he should have given such advice in clear and unambiguous terms. I consider that he should have also realised this in exercising reasonable foresight as well.

In coming to the view that Mr Stephens owed a duty of care to advise Mr Dick to attend to the electrical side of the disconnection, I have not ignored the contrary opinions of Mr Blacker and Associate Professor Blackburn, however I have discounted their contrary views because their analysis proceeded upon the basis of false and unproven assumptions which generally afflicted their opinions. Ultimately, their expert opinions are not determinative. They are of guidance value only.

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Cases Cited (27)

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