PROSPECT COUNTY COUNCIL v FOSTER & ANOR [2001] NSWCA 117 | Case summary

1 HANDLEY JA: This is an appeal by the Prospect County Council from the judgment of Master Harrison which was directed to be entered on 26 November 1999 for $2,684,206.80 arising out of what may be termed as an industrial accident occurring while the plaintiff was working on electricity wires under the control of the County Council. 2 The Master had delivered reasons for judgment on 12 March 1999 but some issues remained outstanding and argument on these occurred on 21 October. The Master again reserved her decision and disposed of remaining issues in her reserved judgment of 26 November. 3 The County Council has appealed and the principal issue argued in the appeal was whether its compulsory third party policy under the Motor Accidents Act responded to the plaintiff 's claim, as Mr Hoeben SC for the County Council and Mr Webb QC for the plaintiff contended, or whether, as Mr Maconachie QC contended for the compulsory third party insurer, this industrial accident fell outside the cover provided by the Motor Accidents Act policy. 4 The injury occurred on 2 July 1990 when the plaintiff went to work on the eastern low voltage feeder from substation number six at Kleins Road Northmead. This work involved the use of an elevated work platform vehicle, which I shall describe as a cherrypicker. The system of work followed on the day in question was that Mr Warner, a linesman's assistant, had tested the wires conducting electricity from the relevant pole on the corner of Kleins and Greens Road Northmead with the use of a lamp tester. This appeared to indicate that the wires were inert because the lamps on the lamp tester did not light up when it was attached to the conductor wires. 5 Having carried out this test, Mr Warner passed the test lamps to a Mr Lidbury who was responsible for taking them to be tested again, to see whether they lit up when brought in contact with electric power. Mr Lidbury reported that the lamps had lit up, indicating that the conductor wires which the plaintiff was going to work on, were inert. 6 The plaintiff and Mr Warner then used the cherrypicker to obtain access to the cross-arm at the top of the pole where they were to carry out the work of restoring power so that the street lights would commence to function properly once again. 7 At one stage, Mr Warner was having difficulty in transferring the B phase conductor from the old cross-arm to the new cross-arm and the plaintiff attempted to assist him in this work. In doing so, the plaintiff came into contact with the C phase and the B phase conductors and suffered a severe electric shock. 8 According to the report of Associate Professor Blackburn, the primary cause of the accident was the failure of the test instrument to detect that the conductors were live. He said that the tester was not fault-proof and in his opinion it should have been tested both immediately before and immediately after its use on the pole. In addition, he gave evidence that an alternative device was available at modest cost which would have had a second method for detecting whether the conductors were live. Even if the lamps on the testing device failed to light up, the alternative or backup system would cause a buzzer to sound if the conductors were live. 9 Professor Blackburn considered that the cherrypicker played no role in the accident, apart from bringing the plaintiff and his assistant into proximity to the live conductors where they had to carry out the necessary restoration work. The Master accepted the evidence of Professor Blackburn, which was not challenged either in cross-examination or by contrary evidence. 10 Professor Blackburn also indicated that other safety precautions could have been taken by the employer at modest expense, involving the use of insulating gloves and protective clothing. 11 The Master found that the County Council was liable both at common law and for breach of various industrial safety regulations in the Overhead Line (Workers) Regulations which were then in force. The principal regulation relied upon was Regulation 22. I will not set out the text of this regulation in these reasons but it was common ground that the employer could have complied with its obligations under this regulation either by isolating any conductor other than that on which work was to be carried out, by providing the workers concerned with suitable protective clothing, or by providing suitable insulation covering which could have been put across any live conductor to prevent current being transmitted to the workers. None of these steps had been effectively taken but none of these steps involved fault in any ordinary sense in the use of the cherrypicker as a motor vehicle. 12 The covering clause in the compulsory third party policy that is relevant in this case is as follows: "The insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle ... against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle in the use or operation of the vehicle ...". 13 The Master found that the fault of the County Council was not "in the use or operation of the vehicle". This was the principal matter argued by Mr Hoeben for the County Council in the appeal. His submissions were encapsulated in the following manner. He submitted that the owner was negligent in failing to provide a safe system of work, that this system of work involved the use of the cherrypicker, and therefore the negligence in the system of work was fault "in the use of the cherrypicker". 14 The County Council's liability at common law was based partly on the inferred negligence of Mr Lidbury in failing to properly and carefully test the lamp tester after it had been used by Mr Warner and partly on its own failure to provide proper testing equipment of the kind described by Professor Blackburn. The first ground of negligence was vicarious and did not involve any failure on the part of the County Council to provide a safe system of work; the second did involve such a failure in that equipment which would have guaranteed accurate testing of the electric wires had not been made available for the use of the workers concerned. 15 In my judgment neither ground of negligence was fault in the use or operation of the cherrypicker in the ordinary meaning of those words. 16 Regulation 22 also relevantly constituted fault on the part of the County Council but as I have indicated previously it could have been complied with either by isolating the conductor wires, by providing protective clothing, or by providing insulation covering for the wires. A breach of this regulation caused by the employer's failure to adopt any one or more of these safety precautions is not in my judgment fault in the use or operation of the cherrypicker in the ordinary meaning of those words. 17 We were referred to the decisions of this Court in NRMA Insurance Limited v New South Wales Grain Corporation (1995) 22 MVR 317 and Mercantile Mutual Insurance Aust Limited v Moulding (1995) 22 MVR 325. In those cases Clarke JA, who gave the principal judgments, analysed the form of covering clause in the compulsory third party policy which is relevant in the present case. In both cases this Court held, affirming the decisions below, that the relevant accident had been caused by the fault of the employer in the use or operation of the vehicle. 18 In the Grain Corporation case, the vehicle was being unloaded and this involved its use. The method of work adopted was negligent and this was a cause of the employee's injury. The employer's fault was therefore fault in the very use being made of the vehicle for the unloading of the goods it was carrying. The decision does not directly support Mr Hoeben's submissions. 19 In the Mercantile Mutual case, cargo in the form of a lamb was being loaded into a vehicle which was unsafe for the purpose of receiving such cargo. The empty space in the front of the vehicle in which the lamb was being deposited contained a loaded cocked rifle with the safety catch off. Again, the vehicle was being used for the purposes of being loaded with cargo in the form of the lamb, and was unsafe for that purpose. Accordingly the fault of the owner in leaving the rifle in an unsafe condition in the area into which the struggling lamb was being loaded was fault in the use of the vehicle. This decision does not provide direct support for Mr Hoeben's submissions. 20 The appellant's case turns essentially on the fact that the workers, including the plaintiff, could only be brought into close proximity to their work station on this electric pole and the source of danger in the live wires by the use of the cherrypicker. However this does not establish that the fault of the County Council was fault "in" the use of the vehicle. In the end, it seems to me the highest that the case could be put on behalf of the appellant was that the vehicle was being used when the fault of the County Council caused the plaintiff to suffer his injuries. It is not sufficient in my judgment that the fault of the owner should be fault which occurs while the vehicle is being used if it is not fault in the use of the vehicle. Here it seems to me the employer's fault lay elsewhere. There was nothing wrong with the use of the vehicle as such and the highest it could be put is that the vehicle was being used but that is not, in my judgment, sufficient. 21 In my judgment therefore, the appeal on liability fails and should be dismissed. 22 The appellant also raised a number of matters dealing with the quantum of damages. The Master made a number of errors of a mathematical kind in her award. She allowed $253,107.70 for future care but as a matter of mathematics when allowance is made for four weeks a year of respite care and one week a year when the plaintiff would be attending the Headway Annual Camp the correct amount should be $228,771. The appeal in that respect should be allowed. 23 The second item concerned an allowance for a handyman. The Master by using the normal multiplier produced an incorrect figure for this allowance. The allowance was $88 a year. The Master's computation used a multiplier which assumes that the loss in question occurs week by week over fifty two weeks. The appeal in that respect should also be allowed. The figure of $64,926.40 for handyman should be deleted and replaced with a figure of $1,248. 24 The final matter concerns the allowance for future care. With respect, it appears the Master misunderstood the report from Dial An Angel and added an amount for keep to the remuneration for the carer which was inappropriate. The figure of $812,250 allowed by the Master should be deleted and replaced with a figure of $478,740. 25 Mr Webb has pointed out that the Master's reasons contained some other errors of a mathematical nature and that when adjustments are made for those errors and for the three errors I have previously identified, and a consequential change made to the allowance for fund management, the resulting judgment which Mr Webb and Mr Hoeben assure us is the correct figure to reflect the reasons which I have pronounced is $2,248,681.90. 26 Arising from those reasons and the agreed schedule of damages as amended which has been provided to the Court I would propose the following orders: (1) Appeal allowed; (2) Judgment of Master Harrison set aside, except as to costs; (3) Substitute judgment for the plaintiff for $2,248,681.90 with effect from 26 November 1999. 27 The Court will have to hear brief argument on the question of costs and I conclude my reasons at this point. 28 DAVIES AJA: I agree with Handley JA but would add a few words of my own. The fault which caused the employee's injury comprised the provision of a test lamp which was faulty and the failure to test it, or to test it properly, both before and after its use, according to appropriate practice. The use of the test lamp and the failure to test it, or to test it properly, occurred prior to the subject use of the vehicle, the EPV. There was no fault in the EPV itself and no negligence in its handling, for it was operated in the context that the conductors had been tested and found not to be alive. In such a context, the system of work adopted in which the EPV was used was, on its face, a safe system of work. 29 In my opinion, no fault occurred in the use or operation of the vehicle as those terms are used in the third party insurance policy. 30 I agree with the orders proposed by Handley JA. 31 IPP AJA: I agree with Handley JA and Davies AJA. I wish merely also to add a few words. The operative phrase in the relevant indemnity provision is "death of or injury to a person caused by the fault of the owner or driver of the vehicle in the use or operation of the vehicle". The term "caused by" requires a direct or proximate relationship (Dickinson v Motor Vehicle Insurance Trust (1987) 163 CLR 483 at 505). It follows that the indemnity is only triggered when there is a direct and proximate relationship between the death or injury to a person on the one hand and the fault of the owner or driver of the vehicle in its use or operation on the other. 32 In this case, the injury is said to have been caused by a negligent system of work, or breach of a statutory duty, in which the use of the vehicle formed an essential part. The vehicle however was used neither negligently nor in breach of statutory duty. In my view, there was no requisite direct or proximate relationship between the injury and fault in the use of the vehicle as the indemnity provision required.

PROSPECT COUNTY COUNCIL v FOSTER & ANOR

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