Plaintiff v Defendants

Supreme Court of Victoria|2013-04-17|Before: J FORREST J

EVIDENCE - Admissibility of evidence - Evidence as to the witness's state of knowledge and industry practice - Relevance of evidence of power companies' record keeping - Opinion based evidence - Evidence Act 2008 (Vic) ss 55(1), 79.

In relation to those ones [being the break in conductors in SWER lines that Mr Knop had observed as an electrical inspector] that you observed relatively close to the pole, when you went to do those inspections, what was the attribution given by the company as to the cause of those breaks near the pole?[1]

2 The line of questioning which will, it would seem, inevitably flow from this question, relates to, as I perceive it, fractures of conductors on SWER lines, the role of Aeolian vibration and arguably, incorrect attribution of the cause of the failure of particular conductors by the relevant power company.

3 Central, or at least highly relevant, to both the existence of duty and to the allegation of breach of duty against SPI concerning the valley conductors are the following matters:

(a) The state of knowledge of SPI and/or the electricity power industry as to the effects of wind vibration on conductors, particularly steel conductors such as the 3/12 used on the Pentadeen Spur;

(b) The state of knowledge of SPI and the electrical power industry as to the means by which the deleterious effects of wind vibration or conductors can be reduced or eliminated; and

(c) The practices in the electrical power industry of reducing or eliminating deleterious effects of wind vibration on conductors such as the use of dampers which, on SPI's own documentation, appears to be an accepted method of reducing the effects of vibration.

4 Potentially, Mr Knop's evidence can rationally affect the facts in issue in relation to each of those three matters.[2] In addition, evidence as to industry practice and state of knowledge relevant to each of these issues has been admitted already. For example, industry standards and guidelines (both Australian and international), SPI and SECV manuals and instructions, including stringing charts and manufacturers recommendation, to name but a few.

5 That body of evidence clearly went to questions of both duty and breach of duty: that of foreseeability and. state of knowledge. It is necessary only to go to what was said by Bell JA in BI (Contracting) Pty Ltd v University of Adelaide:[3]

The issue here is not proof of the general facts of history, but the state of medical knowledge of the dangers of the inhalation of asbestos dust and fibre that was available to informed industry participants (which BIC conceded it was) in 1961. An inference may be drawn from the state of knowledge in this respect as to the foreseeability of the risk of injury to a person exposed to asbestos dust and fibre, a consideration that is relevant to the inquiry at the level of duty and breach.[4]

In Mr Parker's submission, the Court may draw conclusions as to the state of knowledge in a field of specialty, by reference to the literature, without the assistance of an expert. He instanced the Dreessen article as a publication which he suggested could be understood by a layperson. The circumstance that a publication in the field of specialty may be understood without assistance would not be a reason for holding that the evidence of the expert witness through whom it was tendered was not admissible, except perhaps on the ground of relevance.[5]

I mention the second paragraph simply to make the point that evidence as to the state of knowledge, be it documentary or oral, is admissible and goes to both questions of duty and breach of duty in determining the foreseeability of the relevant risk.

6 Evidence as to the manner in which SWER lines may have sustained fractures in the past, and more relevantly, from wind vibration and the methods used to alleviate that problem also goes, as I mentioned already, to the question of industry practice at the relevant time.

7 There are a raft of decisions in this country and in the United Kingdom which identify the relevance of such a practice in determining whether a defendant has acted reasonably in the circumstances.

8 I addressed some of these decisions in a judgment of Lindsay-Field v Three Chimneys Farm Pty Ltd[6] and at [73], I said as follows:

The primary rule is that the evidence of industry practice is not determinative - the test remains: what is a reasonable response to the identified risk in all the circumstances?

In that decision I had indicated earlier that industry practice was, of course, relevant in determining whether a defendant had or had not acted reasonably in the circumstances.

9 In 2011 in Baker v Quantum Clothing Group Ltd,[7] the Supreme Court of the United Kingdom grappled with the same issue which arose in a loss of hearing claim. Lord Mance adopted at [10] what had been said by Mustill J in the well-known judgment of Thompson v Smiths Ship Repairers (North Shields) Ltd[8] in which his Honour said:

The speeches in that case [Morris v West Hartlepool Steam Navigation Co Ltd [1956] AC 552] show, not that one employer is exonerated simply by proving that other employers are just as negligent, but that the standard of what is negligent is influenced, although not decisively, by the practice in the industry as a whole. In my judgment, this principle applies not only where the breach of duty is said to consist of a failure to take precautions known to be available as a means of combating a known danger, but also where the omission involves an absence of initiative in seeking out knowledge of facts which are not in themselves obvious. The employer must keep up to date, but the court must be slow to blame him for not ploughing a lone furrow.[9]

That principle has been adopted and applied both in the United Kingdom and in this country on many occasions.

10 Mr Knop has worked in the power industry for over 40 years. He has considerable experience with both Powercor and SECV in the design and construction of SWER lines and also when employed on the ground in detecting operational faults. He can, in my opinion, give evidence as to his own knowledge of the effects of vibration on conductors and methods of minimising the deleterious effects of that vibration, particularly the steps taken, if any, by power companies to reduce the effect of wind vibration, provided, of course, he has personal knowledge of such steps.

11 So, returning to this question and the questions that will inevitably follow it, the question is admissible as it sets the scene appropriately for the witness to give evidence along the lines that I have indicated: that is to the effects of vibration on conductors and methods of minimising the deleterious effects as well as the steps taken, if any, of power companies to reduce the effects of wind vibration.

12 I do not consider that Mr Knop's evidence need be limited simply to SWER lines, although, of course, if his evidence is directed to SWER lines, it will become of greater relevance.

13 Turning to the second aspect of relevance argued by counsel for Mrs Matthews, that of the investigation of the cause of failures attributed to rust. This was put as follows: It is probative of the potential for incorrect attribution by a power company of a conductor failure to corrosion when in fact it results from another condition such as Aeolian vibration. This, it is argued may be used to counter SPI's assertion that it did not have an incidence of strand or conductor failures on its steel conductors caused by Aeolian vibration. Such an assertion must rely upon the state of its records and the attribution within its records of the cause of a particular failure of a conductor.

14 The problem identified by Mr Beach for SPI is that the question, as presently framed, does not in any way implicate SPI's record keeping or attribution. It is not yet suggested that any of these incidents referred to by Mr Knop occurred in SPI's territory or involve SPI's assets but that, in my opinion, does not render it or similar questions inadmissible.

15 The test of relevance under s 55(1) of the Evidence Act 2008 (Vic) is as follows:

The evidence that is relevant in a proceeding is evidence that, if it were impacted, would rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

16 As the authors of "The New Law of Evidence, 2nd Edition", correctly in my view, state, and consistent with the observations of Lehane J in Zaknic Pty Ltd v Svelte Corporation Pty Ltd,[10] s 55 "sets an undemanding definition of relevance. It merely requires the court to ask: could the evidence if accepted, affect the probability, even indirectly, of the existence of a fact in issue in the proceedings? There need only be a minimal logical connection between the evidence and a fact in issue. It is important not to confuse relevance with sufficiency or weight."[11]

17 In my opinion, the question is also admissible on this second ground; it has the potential to be probative of a fact in issue, namely the possibility that a power company may incorrectly attribute the cause of a fracture to corrosion rather than Aeolian vibration.

18 I do, nonetheless, accept that as a matter of weight, what one power company may do has some but very little relevance to the manner in which another power company may carry out its own investigations and keep its records. Nevertheless, I am persuaded that on the second basis, the evidence led from Mr Knop on this issue is also admissible.

19 I should mention one other matter. I am satisfied that the evidence of Mr Knop on this issue is not opinion evidence and therefore excluded by s 79 of the Evidence Act 2008 (Vic). In Ruling No.9,[12] I set out a number of instances where the evidence of a witness which, perhaps at first blush might be thought to be opinion evidence, is in reality evidence of observation.[13] This is just such a case. Mr Knop is giving evidence of observations made by him in the course of his employment in the power industry. At times when his evidence strays into his understanding of the processes at work at the time of his observations that also is not opinion evidence but rather a factual conclusion informed from his observations at the time. This, as I mentioned in that ruling,[14] does not fall foul of the opinion rule. On the other hand, when Mr Knop is asked to apply that knowledge and understanding to factual matters in this case and express a view relevant to causation concerning the failure of the Valley Span conductor then that crosses the line.

[11] Jill Anderson, Neil Williams SC, and Louise Clegg, The New Law of Evidence (LexisNexis Butterworths Australia, 2nd ed, 2009) 163.

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