Papatonakis v Australian Telecommunications Commission

Papatonakis v Australian Telecommunications Commission - [1985] HCA 3 - HCA 1977 case summary — Zoe

[51]

the trend of judicial authority has been to treat the liability of an occupier for mishaps upon his premises as governed by a duty of care arising from the general principles of the law of negligence. The special rules concerning invitees, licensees and others are ultimately subservient to those general principles. Instead of first looking at the capacity in which the plaintiff comes upon the premises, and putting him into a category by which his rights are measured, the tendency now is to look at all the circumstances of the case, including the activities of the occupier upon, or in respect of, the premises, and to measure his liability against the conduct that would be expected of a reasonably careful man in such circumstances. The general applicability of this statement in the light of the reaffirmation of the rules relating to the traditional categories of entrant by the Privy Council in Commissioner for Railways v. Quinlan [35] , Commissioner for Railways v. McDermott [36] and Southern Portland Cement Ltd. v. Cooper [37] , is not here in issue: see Public Transport Commission (N.S.W.) v. Perry [38] . In relation at least to a person in the position of an invitee, Anderson and Voli must be taken as settling that the duty of an occupier, even as it is expressed in the Indermaur v. Dames formulation, is no more and no less than the ordinary duty of reasonable care. Whether it also amounts to a duty to ensure that reasonable care is taken is a matter which may fall for consideration at some later time: see Thomson v. Cremin [39] ; Kondis v. State Transport Authority [40] . I do not regard the view at times expressed in cases such as McDermott [41] , Herrington v. British Railways Board [42] , and Perry [43] , that the relationship between the parties may impose upon the occupier a duty of care existing concurrently with the duty of care arising by virtue of his status as occupier as inconsistent with the duty of an occupier to an invitee being itself a duty to exercise reasonable care. 1. (1963) 110 C.L.R. 74. 2. (1963) 110 C.L.R., at p. 89. 3. [1964] A.C. 1054. 4. [1967] 1 A.C. 169. 5. (1973) 129 C.L.R. 295. 6. (1977) 137 C.L.R. 107, at pp. 115, 121, 130-133, 138-139, 146. 7. [1953] 2 All E.R. 1185. 8. (1984) 154 C.L.R. 672, at pp. 685-687. 9. [1967] 1 A.C., at pp. 186-187. 10. [1972] A.C. 877, at pp. 913, 929. 11. (1977) 137 C.L.R., at pp. 131-132, 138-139.

[62]

The Commissioner must be taken, of course, to have known of the existence and position of the wooden bar. He put it there. But mere knowledge of the physical facts is, in my opinion, clearly not enough to bring the Commissioner within the language of Willes J. - any more than the plaintiff's mere knowledge of the physical fact is enough to preclude him from recovering. It is impossible to say that a defendant knew or ought to have known of an "unusual danger" unless he not only knew or ought to have known of the existence of a thing but also knew or ought, as a reasonable man, to have known that the thing was dangerous. In the present case, I find it impossible to distinguish between the burdens resting on the appellant in relation to the two causes of action alleged against Northern Research. It is no more onerous for him to succeed on one than on the other. I would expect that this will always be the case where the particular facts do not import any relevant relationship other than that of occupier to entrant. This is because the common law, in enunciating the duty of reasonable care that is owed by an occupier to different classes of entrant to his property is particularizing one aspect of the field of the general law of negligence. It seeks to express what the general duty of care will require of an occupier in particular circumstances: Commissioner for Railways (N.S.W.) v. Cardy [54] ; Anderson [55] . If in a particular case there is more involved than a mere relationship of occupier to entrant, as I thought there was in the dynamic situation involved in Hackshaw v. Shaw [56] , then one is not confined to the traditional characterization of the duty in terms of that relationship. From this perspective, I see no reason to dismiss as of no assistance the formulations of the duty of an occupier towards the different classes of persons who may enter his property. The community's natural desire for certainty in the law is best served by their retention, so long as their relationship to the fundamental principles of the law of negligence is recognized and maintained. 1. [1932] A.C. 562. 2. (1866) L.R. 1 C.P. 274, at p. 288. 3. (1961) 105 C.L.R. 42, at p. 57. 4. (1960) 104 C.L.R. 274, at p. 317. 5. (1961) 105 C.L.R., at p. 56. 6. (1984) 155 C.L.R. 614.

[66]

With all respect, I think that both the trial judge and the majority in the Federal Court allowed too much weight to the fact that the appellant used only a single ladder to mount the pole. It may be accepted that it was negligent of him to do so, but in these days when contributory negligence is no longer an absolute bar to recovery of damages for negligence the occupier cannot shelter behind such a finding. If the proper question was whether the pole itself presented an unusual danger in respect of which the occupier was under a duty of care then the decisions below would be clearly correct because the condition of the pole was obvious. No skilled contractor who chose to mount such a pole and suffered injury in the event that the pole collapsed could hope to lay the blame at the door of the occupier. But in this case the pole was not the source of the danger and in any event the pole did not collapse. The proper conclusion is that the pole itself was not the cause of the appellant's injuries. The cause of his injuries lay in the fact that he climbed the ladder, resting as it was against the pole, relying on the fact that the pole would be stabilized and supported by the admittedly strong Telecom bearer wire extending at right angles from either side of the pole. Reliance on the bearer wire in this way is accepted as proper practice by Telecom, even where its own poles were concerned. Unfortunately, the appellant's reliance on the bearer wire was misplaced because unknown to him the wire had been tampered with, resulting in the presence in the line of a length of ordinary household flex which contained no bearer wire at all. As his weight went on the ladder and thence to the pole, the incomplete bearer wire was unable to take the strain; it snapped, presumably in the vicinity of the flex, causing the Telecom wire to whip back and around the pole. The sudden release of the wire while under the strain caused the top of the pole to rock violently and in the result the appellant fell and was seriously injured. The trial judge expressly found that it was not negligent of the appellant to have failed to detect the presence of the flex before proceeding to climb the ladder. His Honour also found that had he become aware of it he would not have attempted to perform his task by mounting the pole in the manner he did. In the light of these facts, the significance to the course of events of Northern Research's failure to warn the appellant of the state of the wire is manifest. It was clearly an unusual danger. Having regard to the fact that Northern Research was responsible for its creation, it cannot be heard to say that it was not aware of the existence of the danger and of the dangerous significance it held for the appellant in the task he was invited to perform. It is no answer to say that a layman may not have appreciated the importance of a continuous bearer wire to the performance by Telecom of its functions because having chosen to interfere in a matter calling for technical skill Northern Research will rightly be fixed with knowledge of the significance of its conduct: cf. Caminer v. Northern & London Investment Trust Ltd. [59] ; Wells v. Cooper [60] . Finally, in this regard, the line of cases beginning with Christmas [61] upon which their Honours in the Federal Court relied cannot apply to the facts of this case where the interference with the Telecom wire was not discoverable by a competent skilled workman proceeding without negligence.

[69]

It remains to consider the question whether the appellant was guilty of contributory negligence. I have found the question difficult. The starting point for its consideration must be the finding of the trial judge that it was negligent of the appellant to climb the third pole. To do so was probably contrary to Telecom instructions although I do not find the evidence in that regard to be altogether satisfactory. But there are competing considerations that operate in favour of the appellant. There was some discussion between the appellant and his assistant before the second pole was climbed because its makeshift appearance was recognized. However, the pole was subject to the standard "push-test" to which all poles must be subjected, whereby the ladder is placed against the pole and pressure exerted against the line of the bearer wire. It is plain from the manner of carrying out the test that reliance upon the bearer wire to stabilize the pole is a crucial part of the system, including the system applicable to standard Telecom poles. Having passed the push-test, the appellant climbed the ladder and successfully attached the new line to the second pole. With that experience behind him, the appellant went to the third pole where he himself applied the push-test with apparent satisfaction. It is said that the appellant should not have proceeded to work on that pole; he should have suspended the operation and reported back to his superiors so that an inspection could be carried out by senior staff and a decision made. It is easy with hindsight to know what should have been done but I do not think one should judge too harshly a worker who while not being foolhardy takes what proves to be an overly optimistic view of matters pertaining to his safety. To have returned to the depot would have caused delay to the work and it is not difficult to understand why, the pole having been given a successful push-test, he should have thought that it would be all right. The trial judge, in reaching his conclusion that the appellant was negligent in mounting the pole, relied upon the evidence of Mr. Pulleine, a storeman employed by Northern Research. Mr. Pulleine, expressed the view that it was "perfectly ridiculous to put a ladder up to a pole like that it was a free standing piece of pipe that, you know, was just prone to accident". But as St. John J., observes, Mr. Pulleine was not an expert, he had no knowledge of the existence of the bearer wire and the reliance upon it for which the system provided. His evidence was of little value.

[79]

The appellant suffered his injuries because the third pole was unstable unless it was adequately braced and because the wire running from the pole to the shed contained a length of domestic flex which was incapable of providing the bracing needed as the appellant climbed the ladder. It was negligent of the plaintiff to climb the pole even on the assumption that the bearer wire ran from the pole to the shed, but that is not the end of the matter. The immediate cause of the accident was the snapping of the wire at the join of the bearer wire with the length of domestic flex. Had Northern known that the appellant proposed to place his ladder against the pole in such a position as to require bracing of the pole by the wires as he climbed, it would have been obvious that Northern should have warned the appellant that the wire running to the shed could not be relied on. But Northern did not know how the appellant would go about his work. Muirhead J. thought that the danger of mounting the pole with a single ladder was so obvious that Northern could not reasonably foresee that it would be attempted by a Telecom employee. Accordingly, the appellant's claim against Northern was dismissed. The majority in the Full Court of the Federal Court (Franki and Fisher JJ.) dismissed an appeal, holding that it was a case where Northern had left it to the Telecom employees to decide how the work was to be done and what safeguards should be taken. Their Honours referred to a line of cases where independent contractors who had been invited by occupiers to undertake work had failed to recover damages when they were injured because the premises proved to be unsafe in some respect: Christmas v. General Cleaning Contractors Ltd. [67] ; Bates v. Parker [68] ; Archer v. Hall [69] ; Wright (W. H.) Pty. Ltd. v. Commonwealth [70] ; Pinborough v. Minister of Agriculture [71] . The principle which these cases illustrate is this: where an independent contractor carrying on a particular trade is engaged by an occupier to work on his premises, the occupier is not under a duty to give warning of a defect in the premises if tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind.

[94]

In the present case, the question of foreseeability of a real risk of injury does not fall to be determined by reference merely to whether the ordinary reasonable man of the law could be expected to know of the importance which a Telecom linesman was likely to place upon the strength of Telecom's standard cable. The evidence indicated that the installation of a Telecom extension line is a skilled function for which special materials are required, together with some understanding of the properties of those materials. Having interfered with such an installation with which an unskilled person was not properly qualified to tamper, Northern is not entitled to claim immunity from liability for the likely consequences of its meddling on the ground that the ordinary person would not foresee them. A reasonably prudent occupier does not rely merely on his own judgment and skill in a situation where technical expertise which he does not possess is required. He should obtain and follow proper technical advice or employ a qualified person to perform repairs requiring expert skill: see, e.g., Haseldine v. C. A. Daw & Son Ltd. [79] ; Wells v. Cooper [80] . If he meddles himself, he cannot complain if the standards of care and foreseeability of injury which the law exacts of him are not those of the hypothetical person on a hypothetical Bondi tram or Clapham omnibus but those of the "ordinary skilled [person] exercising and professing to have that special skill": per McNair J., Bolam v. Friern Hospital Management Committee [81] . The question whether the unauthorized and uncommunicated insertion of a length of ordinary weak flex in the strong Telecom cable was foreseeably a cause of injury in the present case accordingly falls to be determined by reference to the standard of the person with sufficient expertise to know of trade skills and practices including the reliance which telephone linesmen are likely to place upon the strength of standard cable in the ordinary course of their work. The case is analogous to that where a claim in negligence depends upon whether some defect in a complicated piece of machinery was foreseeably a cause of injury and in which, as Lord Bridge of Harwich observed in McLoughlin v. O'Brian [82] , "the judge will decide that question on the basis of the expert evidence of engineers".

[96]

As has been said, neither the post nor the ladder on which the appellant was standing fell down when the accident occurred. The appellant was thrown from the ladder when the post whipped back after the weak flex had broken. Follett managed to keep the ladder itself upright. The strong Telecom cable added stability to the post while it was intact. It produced the foreseeable and dramatically opposite effect when the weak link, which should not have been there, broke. To one with knowledge of the stabilizing effect the standard cable had on a telephone post and of the reliance that linesmen placed on it, it was reasonably foreseeable that to insert weak flex in the line of cable would create a real risk of injury to a linesman who was unaware of the insertion and who might assume and rely upon the standard cable's strength and stabilizing effect. That being so, Northern was under a duty of care towards those who might subsequently work upon the extension line when it interfered with the Telecom installation. The appellant was one of the class of persons to whom that duty of care was owed. Northern was in breach of that duty of care to the appellant when it destroyed the strength and stabilizing effect of the cable and failed to tell Telecom or the appellant of what it had done before the appellant, as a result of Northern's own complaint to Telecom, commenced to work upon the extension line. It is true that the appellant should not have climbed the post and that he was obviously guilty of contributory negligence in so doing. That does not alter the position, however, that, in terms of the standard to be applied, it would have been reasonably foreseeable to a skilled person that to destroy the strength of the cable by inserting a length of weak flex might cause injury in a variety of ways to a linesman who had not been told of the insertion and who relied upon the strength of the cable to support either the post if he or his ladder was to lean against it or himself if he had cause to grab it. On the evidence and on the learned trial judge's findings, the appellant and Follett both relied upon the strength of the cable to support the post: the appellant would not have climbed the post if he had been told of the insertion of the weak flex and, as has been seen, the inference from the evidence is that the accident was actually caused by the breaking of the weak flex. The accident which occurred and the injury which the appellant sustained were of the very kind which it could be reasonably foreseen might result from breach of the duty of care which Northern owed to the appellant.

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