Stephens v Giovenco; Dick v Giovenco

Trunks Australia Ltd [2010] NSWCA 113 Haber v Walker [1963] VR 339 Henville v Walker [2001] HCA 52; 206 CLR 459 Home Office v Dorset Yacht Co [1970] AC 1004 Hunter Area Health Service v Presland [2005] NSWCA 33; 63 NSWLR 22 Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 Kuwait Airways Corporation v Iraqui Airways Co (Nos 4 and 5) [2002] 2 AC 883 Lavesu Pty Ltd v Clark [2010] NSWCA 180 March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 M'Kew v Holland & Hannon & Cubbitts [1970] SC (HL) 20 Modbury Triangle Shopping Centre Pty Limited v Anzil [2000] HCA 61; (2000) 205 CLR 254 Mount Isa Mines Ltd v Pusey [1970] HCA 60; 125 CLR 383 Nagle v Rottnest Island Authority [1993] HCA 76; 177 CLR 423 National Coal Board v England [1954] AC 403 Nominal Defendant v Gardikiotis [1996] HCA 53; 186 CLR 49 O'Halloran v RT Thomas & Family Pty Ltd (1998) 45 NSWLR 262 Reeves v Commissioner of Police [2000] 1 AC 360 Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 Roads and Traffic Authority of NSW v Refrigerated Railways Pty Ltd [2009] NSWCA 263 Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870 Roe v Minister of Health [1954] 2 QB 66 Rushton v Turner Brothers Asbestos Co Ltd [1959] 3 All ER 517 Seltsam Pty Ltd v McNeill [2006] NSWCA 158; (2006) 4 DDCR 1 Shaw v Thomas [2010] NSWCA 169 Shirt v Wyong Shire Council [1978] 1 NSWLR 631 Stansbie v Troman [1948] 2 KB 48 Stapley v Gypsum Mines Ltd [1953] AC 663 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 Travel Compensation Fund v Tambree [2005] HCA 69; 224 CLR 627 Waverley Council v Ferreira [2005] NSWCA 418 Williams v Sykes & Harrison Ltd [1955] 1 WLR 1180 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 Zanner v Zanner [2010] NSWCA 343 Texts Cited: H L A Hart and T Honor Causation in the Law (Oxford, 2nd ed, 1985) Category: Principal judgment Parties: 2010/79805: Paul Thomas STEPHENS t/as CTS PLUMBING (appellant) Fiona GIOVENCO (first respondent) Geoffrey John DICK (second respondent) 2010/80871: Geoffrey John DICK (appellant) Fiona GIOVENCO (first respondent Paul Thomas STEPHENS t/as CTS PLUMBING (second respondent) Representation: Counsel: A HEWITT SC / M KUMAR (Ms) (Stephens) S G CAMPBELL SC / A J STONE (Giovenco) J SEXTON SC / R CHENEY (Dick) Solicitors: Curwoods Lawyers (Stephens) Stacks Goudkamp (Giovenco) Lee & Lyons Lawyers (Dick) File Number(s): 2010/79805; 2010/80871 Publication restriction: None Decision under appeal Citation: Giovenco v Dick [2010] NSWDC 4 Date of Decision: 2010-03-04 00:00:00 Before: LEVY SC DCJ File Number(s): 4826/2007

HEADNOTE Facts The second appellant (Mr Dick) owned a residential property in Darlington. On or shortly before 21 November 2001, at the instruction of Mr Dick's agent, L J Hooker at Newtown, the first appellant (Mr Stephens), a plumber, attended the premises to inspect a faulty solar hot-water system. Between 23 November 2001 and 11 January 2002, Mr Stephens installed at ground level a gas hot-water system, and advised Mr Dick that he had disconnected the water supply to the faulty solar hot-water system. Mr Stephens did not disconnect the electricity supply to the solar hot-water system, or advise Mr Dick that he should engage an electrician to do this. In 2003-04, at the request of Mr Dick, Mr Harley (the deceased) performed a number of handyman tasks at the premises. In about August or September 2004, following a request by Mr Dick to attend to a leak in the roof, Mr Harley inspected the roof and the redundant solar hot-water system. Mr Harley and his assistant discussed the risk of working on the system while it was potentially still electrified, and Mr Harley made a telephone call to Mr Dick. On 23 October 2004, Mr Harley left home to work on the roof at the premises. Mr Harley was observed on the roof at about 2.00pm. At about 2.30pm he returned home to change, telling the respondent (Ms Giovenco) that he had to call an electrician. He then returned to the premises. Some time later, and before 9.45pm, Mr Harley was electrocuted, by electricity that was still connected to the solar hot-water system, and he was killed. Mr Harley had removed the cover to the electrical panel on the storage tank for the hot-water system. The primary judge found that Mr Dick and Mr Stephens owed and were in breach of their duty of care to Mr Harley, and that Ms Giovenco had satisfied the requirements of the Civil Liability Act 2002 with regard to proof of negligence and causation. He found that Mr Dick and Mr Stephens had failed to discharge the onus they carried for proof of contributory negligence. Issues The issues arising on appeal are: (1) Alleged error of primary fact in finding that Mr Dick knew (or ought to have known) that there was a live electrical connection to the redundant hot water system. (2) Alleged error of primary fact in finding that Mr Dick authorised or instructed Mr Harley to remove the redundant hot-water system. (3) Alleged error of primary fact in not finding that Mr Harley knew there was a live electrical connection to the redundant hot-water system. (4) Alleged error of primary fact in not finding that Mr Harley removed the cover to the electrical panel. (5) Further finding of fact sought, that Mr Harley took steps to turn off the electrical supply to the solar hot-water system, and worked on it in the mistaken belief that there was no electrical current flowing to it. (6) Alleged error of law (or combined fact and law) in finding that Mr Stephens owed Mr Harley a duty of care. (7) Alleged error of law (or combined fact and law) in finding that Mr Dick owed Mr Harley a duty of care. (8) Alleged error of law in not finding that Mr Dick's duty of care was excluded by ss 5F and 5G of the Civil Liability Act . (9) Alleged error of fact (or combined fact and law) in finding that Mr Stephens breached his duty of care and that such a breach caused Mr Harley's death. (10) Alleged error of fact (or combined fact and law) in finding that Mr Dick breached his duty of care and that such breach caused Mr Harley's death. (11) Alleged error of fact (or combined fact and law) in finding that there was no contributory negligence by Mr Harley. (12) Alleged errors in apportionment. Held (Appeal allowed, setting aside orders (a), (b), (c) and (d) of the primary judge, judgment for the first respondent, second respondent's cross-claim dismissed): In relation to (1) - Mr Dick's knowledge ( Per Hodgson JA, Allsop P and Tobias JA agreeing ) No error of primary fact: Mr Dick knew there was a live electrical connection. In relation to (2) - Mr Dick's authorisation ( Per Hodgson JA, Allsop P and Tobias JA agreeing ) No error of primary fact: the instructions given by Mr Dick to Mr Harley were in substance to do what was required to fix the leak, including if necessary removal of the hot-water system. In relation to (3) - Mr Harley's knowledge ( Per Hodgson JA, Allsop P and Tobias JA agreeing ) Error of primary fact: Mr Harley was aware that the electricity was connected to the hot-water system. In relation to (4) - Cover removal ( Per Hodgson JA, Allsop P and Tobias JA agreeing ) Error of primary fact: it was an agreed fact that Mr Harley removed the cover. In relation to (5) - steps to turn off electricity ( Per Hodgson JA, Allsop P and Tobias JA agreeing ) It is impossible to infer exactly what precautions Mr Harley took or thought he took. Mr Harley failed to exercise reasonable skill and care for his own safety, but this did not amount to recklessness. In relation to (6) - Mr Stephens' duty of care ( Per Allsop P, Tobias JA agreeing ) Error of law or fact: A duty of care was not owed. It was not reasonably foreseeable that someone who knew of the power connection and of the need to obtain an electrician to disconnect it was within the class of persons who might be put in danger by the risk. ( Per Hodgson JA ) No error of law or fact: A duty of care was owed. Mr Stephens' own actions gave rise to a risk of harm that was foreseeable and not insignificant. In relation to (7) - Mr Dick's duty of care ( Per Hodgson JA, Allsop P and Tobias JA agreeing ) No error of law or fact: A duty of care was owed. In relation to (8) - Obvious risk ( Per Hodgson JA, Allsop P and Tobias JA not deciding ) The risk of electrocution from the live electrical connection per se was not an obvious risk. However, the risk from removal of the cover to the electrical panel was an obvious risk, and therefore Mr Dick did not owe Mr Harley a duty to warn him of it. In relation to (9) - Mr Stephen's breach and causation ( Per Allsop P, Tobias JA agreeing ) If a duty was owed (holding it was not), Mr Stephens breached his duty of care. However, it is not appropriate to extend the scope of Mr Stephen's liability to Mr Harley's death. ( Per Hodgson JA ) No error of fact or law: Mr Stephens breached his duty of care, his negligence was a necessary condition of the occurrence of the harm, and it is appropriate that the scope of Mr Stephens' liability extent to this harm. In relation to (10) - Mr Dick's breach and causation (Per Allsop P) Error of fact or law: Mr Dick did not breach his duty of care. If, however, he did breach his duty of care, factual causation is shown and it is appropriate for the scope of Mr Dick's liability to extend to the death of Mr Harley. ( Per Hodgson JA, Tobias JA agreeing ) No error of fact or law: Mr Dick breached his duty of care and causation is established. In relation to (11) - Contributory negligence ( Per Hodgson JA, Allsop P and Tobias JA agreeing ) Error of fact or law: Contributory negligence is established. In relation to (12) - Apportionment ( Per Allsop P ) If Mr Stephens and Mr Dick are liable (holding they are not), as between Mr Stephens and Mr Harley, Mr Harley was 85 per cent contributorily negligent. As between Mr Dick and Mr Harley, Mr Harley was 80 per cent contributorily negligent. If apportionment is to be assessed in the context of two tortfeasors, an assessment of 65 per cent contributory negligence of Mr Harley and 35 per cent for the combined responsibility of Mr Stephens and Mr Dick is just and equitable. ( Per Hodgson JA ) Damages should be reduced by 60 per cent by reason of Mr Harley's contributory negligence. Mr Stephens and Mr Dick should be equally liable for the remaining 40 per cent. ( Per Tobias JA ) Agreeing with Allsop P as to Mr Harley's 80 per cent contributory negligence as between Mr Dick and Mr Harley.

Judgment 1ALLSOP P: I have read the reasons in draft of Hodgson JA. His Honour's reasons, including his description of the issues and findings of fact, permit me to express why I respectfully disagree with his Honour's conclusions as to the liability of Mr Stephens and Mr Dick without a separate detailed statement of the background or facts. Subject to such disagreement as inheres in what follows, I agree with the factual analysis and conclusions in the reasons of Hodgson JA.

Mr Stephens 2I will deal with Mr Stephens (the plumber) first. Mr Stephens' task was to disconnect the water supply to the hot water system. He knew of the power connection remaining. He was not licensed himself to disconnect it. No immediate alteration of risk was caused by his acts. No immediate new risk was created. There was removed, however, the factor that made such risk as existed (power to a metal vessel on the roof of the building) counter-balanced by a practical and useful consideration - a working hot water service. As the previous and contemporaneous industry standards in evidence disclosed or implied, it was good and safe practice to discontinue the power to a decommissioned solar hot water service. The risk that could be reasonably perceived by a person in Mr Stephens' position was that a disused and, over time, decaying or rusting hot water system might be assumed to be disused, dormant and safe; when, in fact, it was disused, dormant and live with enough power to electrocute. 3The analysis to be undertaken in the consideration of whether a duty of care exists, its scope and to whom it is owed is to be undertaken at a level of abstraction enabling an inquiry as to the foreseeability of harm to the plaintiff resulting from the acts or omissions of the defendant considered generally as those of the party about to undertake them. This higher level of abstraction extends to defining the class of persons whose exposure to the relevant risk is foreseen or reasonably foreseeable: see Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 639-640 (Glass JA); Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 46-48; Seltsam Pty Ltd v McNeill [2006] NSWCA 158; (2006) 4 DDCR 1 at [25]-[40] (Bryson JA with whom Handley JA and Tobias JA agreed); and Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at 666-669 [61]-[70]. 4Here, the character of the on-going (and unnecessary) risk was that, over time and as the hot water system including the solar panels apparently deteriorated in appearance as a disused body of equipment, someone might deal with the structure on the assumption or in the belief that it was disused, dormant and disconnected. The risk that Mr Stephens' conduct permitted to remain did not, however, increase any danger or risk of injury for someone in Mr Harley's position who knew of the power connection. In that sense, at that level of abstraction, a reasonable person in the position of Mr Stephens could reasonably foresee someone being seriously injured or killed who interfered with the structure assuming or believing the system to be disconnected. That reasonable foresight would include persons who carelessly (but to a degree understandably) might make an assumption about the safety of apparently disused equipment such as this. I do not think that that foresight is negated by the fact that wires can be seen to run into the vessel. If equipment is apparently disused it is foreseeable that the assumption to which I have referred might be made. That risk and its character assist in understanding the class of persons to whom the relevant duty is owed - persons who may deal with the disused equipment (carelessly or not) not appreciating it to be live. That risk also shapes the content of the duty - to inform the owner of the appropriateness, for reasons of safety, to have the power disconnected. The risk and its nature and consideration of the matter at the requisite level of abstraction lead to the conclusion that it was not reasonably foreseeable that someone who knew of the power connection and of the need to obtain an electrician to disconnect it was within the class of persons who might be put in danger by the risk and who could be reasonably foreseen to be possibly injured if reasonable steps to advise the owner appropriately were not taken. 5It can be accepted that the assessment of the foresight directed to the classes of harm, events and persons leaves unresolved the level of abstraction or particularity at which the class of harm, event or person is to be defined: Mount Isa Mines Ltd v Pusey [1970] HCA 60; 125 CLR 383 at 402 (Windeyer J). In relation to personal injury it is the reasonable foresight of injury from the risk against which reasonable steps should be taken to guard. That it is indeed possible (as on the findings did happen) that someone who knew the system was connected to power, who knew an electrician was required to disconnect it and who knew that the power could be turned off, would nevertheless interfere with electrical connections without an electrician and without turning off the power, did not make it reasonably foreseeable that there was a risk of this occurring; nor does it conclude the question of duty: cf Home Office v Dorset Yacht Co [1970] AC 1004. 6It can also be accepted that, in circumstances where possible injury is reasonably foreseeable, the duty of care that the law will impose will generally extend to those who may fail to take proper care for their own safety. Contributory negligence is not to be transformed into a complete answer to a claim by excluding a plaintiff from the scope of the duty by restricting the duty as one to be owed only to those who are not careless for their own safety. The position of Mr Harley is not to be explained merely by his undoubted lack of care for his own safety. The nature and extent of the risk, the appropriate legal response embodied in the duty to deal with that risk by the provision of information and advice to the owner about the risk and the appropriateness of disconnection, and the lack of reasonable foreseeability that a person with full knowledge of the risk might suffer injury are inter-related and, taken together, explain why the duty did not extend to someone in Mr Harley's position. This conclusion is consistent with cases such as Nagle v Rottnest Island Authority [1993] HCA 76; 177 CLR 423 at 431; Bus v Sydney County Council [1989] HCA 29; 167 CLR 78 at 90-91 and Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330. In such cases the nature and character of the risk and thus the scope of the duty in response were and was such as to permit the reasonable foresight of the relevant plaintiff, even if he or she were negligent as to his or her own safety. 7I do not consider that the restriction of those to whom the duty is owed is unnecessarily narrow. In my view, it accords with the scope of the risk and the just legal response to all the factual circumstances. If not so limited, it is difficult to see why the duty would not be owed to a trained electrician later retained by the owner to disconnect the power if the owner otherwise became alerted to the question. That factual hypothesis may be dealt with by a restriction of the duty; or, perhaps, it may be a question of causation. Nevertheless, it highlights, in my view, the inappropriateness of the duty reaching to someone in Mr Harley's position. 8In my view, Mr Stephens did not owe a duty of care to Mr Harley: cf Civil Liability Act 2002 (NSW), s 5B(1)(a). 9If this be wrong, I agree that he breached the duty in that he should have advised Mr Dick to have the power disconnected from the hot water service. 10Did this breach (on this hypothesis) cause the death of Mr Harley? The Civil Liability Act, s 5D provides as follows: "(1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ( scope of liability ). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party." 11As to s 5D, see generally Zanner v Zanner [2010] NSWCA 343 at [2]-[13]. Section 5D(1)(a) can be seen as the operation of the "but for" test. It can be accepted that if Mr Stephens had advised Mr Dick in 2001 of the need to disconnect the power, Mr Dick would then have had the electrical work attended to by an electrician. If that had occurred in 2001, Mr Harley would not have been killed in 2004. Section 5D(1)(a) is therefore satisfied and s 5D(1)(b) is thus engaged. 12Is it appropriate, for the purposes of s 5D(1)(b), for the scope of Mr Stephen's liability to extend to the death of Mr Harley? In my view, it is not. The scope and nature of the risk were related to persons unaware of the live connection. That called forth both the duty on Mr Stephens and the nature of the act sufficient to fulfil the duty. That duty would have been fulfilled if he had advised Mr Dick in 2001 to have the power disconnected with an implicit or explicit statement of the need to obviate the risk of power remaining live. True it is that, had he done so in 2001, by the confluence of likely events, Mr Harley would not have been confronted by a live connection in 2004. Nevertheless, Mr Harley was in possession of the very information (and was appreciative of its significance) which the duty required Mr Stephens to give to Mr Dick. With the very information that Mr Stephens was required to give the occupier (Mr Dick) in his possession and knowing an electrician was required, Mr Harley acted as he did, freely, voluntarily and with knowledge. I respectfully disagree with Hodgson JA's conclusion that, on the evidence, the conduct of Mr Harley was not free, voluntary and informed: Haber v Walker [1963] VR 339 at 358; Nominal Defendant v Gardikiotis [1996] HCA 53; 186 CLR 49 at 55; and Hunter Area Health Service v Presland [2005] NSWCA 33; 63 NSWLR 22 at [88], [211]-[212] and [293]. 13The notion of free and voluntary does not necessarily, in my respectful view, require an intention to produce the injurious consequences that occurred: H L A Hart and T Hono r Causation in the Law (Oxford, 2 nd ed, 1985) at 41-44, 136-162 and especially 136-137 ftn 23. The voluntary act in this context is often that of a third party; but, as McHugh J said in Gardikiotis , and as the discussion in Hart and Hono r reveals, it can refer to the act of the plaintiff. The notion of voluntariness here is somewhat narrower than the antonym of involuntary through such agencies as fright or compulsion and "depends on a conception of a human agent as being most free when he is placed in circumstances which give him a fair opportunity to exercise normal mental and physical powers and he does exercise them without pressure from others": Hart and Hono r at 138 and see Haber v Walker at 359. That said, Hart and Hono r go on to say (at 138) that "every merely negligent act is non-voluntary in our sense, since by hypothesis the actor did not intend to exploit the situation". This distinction between a free and voluntary act and "mere" negligence is, of course, a matter of degree: Hart and Hono r at 141. The distinction is mediated by Hart and Hono r by the notion of "intention to exploit". McHugh J used the expression "builds on" in Gardikiotis at 55. 14Here, on the evidence, there was no pressure or interference with the will of Mr Harley. He undertook acts in the full knowledge and appreciation of the risk of live electricity in the vessel. He removed the cap into which electrical wiring ran. As Hodgson JA says, it cannot be inferred that he intended his own death or that he consciously took the risk of death. The evidence was that one end of the vessel collapsed on the day he worked on the roof. It may be that he was not able to get an electrician as he had told Ms Giovenco a little earlier and that he felt in some way constrained to act. This, however, is speculation. There was no evidence of pressing danger requiring him to act without the intervention of an electrician or without turning the power off. He appreciated the existence of the power connection, the need for an electrician and the risk involved if power were left on (as it was). From the perspective of Mr Stephens' responsibility there was a free, informed and voluntary act (albeit not necessarily intending the consequences). 15In some cases, for example employment cases, the voluntary and reckless conduct of the injured or deceased employee in exposing himself to danger which he appreciated may not deny a causal connection of the employer's negligence: see for example Stapley v Gypsum Mines Ltd [1953] AC 663 (where there was not only the free choice of the deceased to work under the dangerous roof, but also the influencing or contributing decision of the co-worker to do so, for which the employer was vicariously liable); Williams v Sykes & Harrison Ltd [1955] 1 WLR 1180; and National Coal Board v England [1954] AC 403. 16It is necessary to recognise, however, that the causal analysis must be undertaken by reference to the rule of responsibility involved: Travel Compensation Fund v Tambree [2005] HCA 69; 224 CLR 627 at 642 [45]; Environment Agency v Empress Car Co (Abertillery) Ltd [1998] UKHL 5; [1999] 2 AC 22 at 29; Chappel v Hart [1998] HCA 55; 195 CLR 232 at 255-256 [62]-[65]; Henville v Walker [2001] HCA 52; 206 CLR 459 at 491 [98]; Barnes v Hay (1988) 12 NSWLR 337 at 353; and O'Halloran v RT Thomas & Family Pty Ltd (1998) 45 NSWLR 262 at 274-275. 17Cases of employer's liability in negligence or for breach of statutory duty can be seen to be affected by the quality of, and the social duties embedded within, the relationship of employer and employee and the expectations therefrom: Carr v Mercantile Procedure Co Ltd [1949] 2 KB 601 at 608 and Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 217 CLR 424 at 444 [44]. Nevertheless, there may be circumstances where the deliberate act of an employee done with appreciation of the risk will constitute the sole cause of injury, notwithstanding a breach of duty by the employer: see, for example, Rushton v Turner Brothers Asbestos Co Ltd [1959] 3 All ER 517. Though that case might well be decided differently today, that may, however, be because of a different value judgment brought to the assessment of a question of degree as to the voluntary act in question and its place in the ascription of legal responsibility by reference to the rule of responsibility upon employers. 18The breach of duty by Mr Stephens, being the failure to advise the owner some years before of the existence of the power connection and of the need for disconnection, had no operative effect (other than being a coincidental part of the chain of historical events). Mr Stephens was not Mr Harley's employer. Mr Harley knew the system was connected, he told Mr Dick of it; and he recognised the need for an electrician. In these circumstances, there is no reason why responsibility for the harm (the "particular harm": s 5D(1)) should be imposed on Mr Stephens, even if he was negligent. Mr Harley and Mr Dick were, before the accident, in full possession of the information that the duty called for being relayed (though some years earlier) to Mr Dick. The factual involvement of Mr Stephens in these circumstances is too tenuous a basis to found responsibility upon him. In the language of the common law, Mr Stephens' failure to advise Mr Dick in 2001 of the live connection and the need to disconnect it had ceased to be operative or effective in force and effect and was not, using common sense, a cause of the loss. As a conclusion as to cause at common law or as a decision under s 5D(1)(b) and (4), this involves a value judgment as to whether it would be just to hold Mr Stephens legally responsible for the death of Mr Harley given the nature and character of what Mr Harley did, even though the latter's death can be traced back to Mr Stephens' breach of duty (on this hypothesis): M'Kew v Holland & Hannon & Cubbitts [1970] SC (HL) 20; March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 at 509-510 and 516-519; Kuwait Airways Corporation v Iraqui Airways Co (Nos 4 and 5) [2002] 2 AC 883 at 1091 [70]; Chappel v Hart [1998] HCA 55; 195 CLR 232 at 243-244; and Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870 at [135]. 19This is not a case such as Reeves v Commissioner of Police [2000] 1 AC 360 where the voluntary act of the person (who committed suicide in a police cell) did not affect the conclusion that the earlier negligence of the tortfeasor (the police who were in control of the cell) remained causally relevant. There the causal link and the scope of liability were to be understood in the context of the duty. That duty was to exercise reasonable care to guard against the very thing that occurred - a prisoner committing suicide in a police cell. See also the cases of suicide not severing a causal link discussed by Smith J in Haber v Walker at 359-360. See also Stansbie v Troman [1948] 2 KB 48 for the intervening act of a third person (the thief robbing the house) not affecting the tortious responsibility of the tortfeasor (the tradesman who left the house unlocked). There the risk created encompassed the very act of the third party. The duty called for precautions against that risk. The scope of the risk here from the perspective of Mr Stephens and the warning to Mr Dick that would have been sufficient action by Mr Stephens to deal with that risk supports the conclusion that the consequence that occurred here is not fairly to be regarded as the responsibility of Mr Stephens: cf Roe v Minister of Health [1954] 2 QB 66 at 85; March v Stramare at 535. 20A normative choice is called for by ss 5D(1)(b) and (4) by reference to the considerations of the kind that I have discussed. It is contestable, as can be seen from the contrary view of Hodgson JA and as, to a degree, all value judgments are. 21Finally, if this conclusion as to causation is not correct, the question of contributory negligence arises. The Civil Liability Act , ss 5R and 5S are in the following terms: "[5R] Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. [5S] Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated." 22The facts here entitle, in my view, an assessment of contributory negligence of a high order. On the basis of the facts as found by Hodgson JA, in particular that Mr Harley did not turn off the power, I would assess Mr Harley's contributory negligence, looking at the matter as between him and Mr Stephens alone, at 85 per cent at the least. He knew of the risk; he knew an electrician was required; and apparently, nevertheless, he exposed himself to the risk. As Hodgson JA has said, one cannot conclude (the appellants now bearing the onus) that his appreciation of the danger was so extreme as to consciously court death. Nevertheless, on the found facts I would ascribe 85 per cent contributory negligence.

Mr Dick 23As to Mr Dick, he did not know of the danger in 2001 or until he was told by Mr Harley some weeks before the day of the fatality. The date when he was told was, according to Mr Gell, about 6 weeks before the day of the fatality. That time period was stated by counsel for Mr Dick on appeal without demur from anyone. I shall work on the basis that that was the relevant period from the phone call of Mr Harley to Mr Dick to the day of Mr Harley's death. Mr Dick had had a plumber and an electrician at the site in 2001. He was apparently not told of the remaining electrical connection in 2001. Whatever may have been his duty as an occupier or controller of the roof of the premises, I see no basis for finding any breach of duty before 2004. 24At all times after being told of the position by Mr Harley, Mr Dick knew of the electrical connection to the vessel and of the need for its disconnection by an electrician. So did Mr Harley. Mr Dick was an occupier of the roof of the premises in that he was in control of that part of the building and the owner of the building. Mr Harley was an entrant, retained by him. They had both recently discovered (neither knowing beforehand) the presence of live electricity in the disused hot water system. Mr Dick had an obligation to exercise reasonable care in respect of the safety of the premises for entrants on the premises, including Mr Harley. 25The question is what did compliance with that duty entail by way of conduct by Mr Dick? In the context of his request of Mr Harley to attend to a leaking roof, Mr Dick must have appreciated from Mr Harley's phone call six weeks before the fatality that electrical decommissioning of the hot water service was necessary for completion of the job. It does not follow that he knew that there was anything dangerous about the service, unless someone took the course of attempting to deal with it in the absence of an electrician or turning off the power. 26The safety of the premises was not compromised by the connection alone. Safety was only foreseeably compromised if the hot water system was to be dealt without an electrician or without turning off the power. 27To conclude that Mr Dick was negligent in failing within the period of six weeks to take precautions against the above risk of harm required (for the Civil Liability Act , s 5B) the risk of someone, including Mr Harley, interfering with the hot water service without an electrician or without having the power off to be viewed as foreseeable, not insignificant and one against which precautions would have been taken by a reasonable person in Mr Dick's position. 28There was no debate about the proper construction of, or principles attending, the Civil Liability Act, s 5B. In these circumstances it is not appropriate to discuss those questions at any length. Section 5B must be satisfied before a conclusion of negligence can be drawn. This involves the interplay between the considerations in the section giving weight to each according to the circumstances. The section has a structure similar to the operation of Wyong Shire Council v Shirt , but the terms of the section should be attended to. That said, s 5B operates against the backdrop of the common law of negligence and incorporates concepts derived from the common law. Reference need only be made to Waverley Council v Ferreira [2005] NSWCA 418; Drinkwater v Howarth [2006] NSWCA 222; Council of the City of Liverpool v Turano [2008] NSWCA 270; Roads and Traffic Authority of NSW v Refrigerated Railways Pty Ltd [2009] NSWCA 263; Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364; Erwin v Iveco Trunks Australia Ltd [2010] NSWCA 113; Shaw v Thomas [2010] NSWCA 169; Lavesu Pty Ltd v Clark [2010] NSWCA 180. 29I am unable to conclude that the facts and circumstances satisfy the Civil Liability Act, s 5B and that Mr Dick was negligent in failing to retain an electrician within six weeks. As to Mr Harley, Mr Dick knew of the connection and the need for an electrician. No case was made that Mr Dick assured Mr Harley or led him to believe that an electrician had attended and disconnected the system. The conversation between Mr Harley and Ms Giovenco before he returned to the flats gainsaid that anyway. No case was made that Mr Dick in any way pressured or encouraged Mr Harley to do the work before an electrician was called. Was it a foreseeable and not insignificant risk of which Mr Dick should have been aware and against which he should have taken precaution that Mr Harley might try to deal with the electrical system on the service without an electrician if he (Mr Dick) did not attend to its disconnection promptly? 30Mr Dick had not withdrawn his instructions to attend to the leak from the roof. He had not caused the structure on the roof, which was relevant to his instruction, to be made safe to deal with. Nevertheless, Mr Harley had already refused to work on the system because it was connected. If Mr Dick wanted the fixing of the leaking roof completed promptly he should have engaged an electrician promptly. That does not, however, answer the question whether in failing to retain an electrician promptly to disconnect the power he failed to take a reasonable precaution for Mr Dick's or anyone else's safety in respect of a foreseeable and not insignificant risk. For there to be danger or risk required someone to deal with the system either thinking it was disconnected or, if knowing if it was connected, interfering with it without an electrician or without turning the power off. Given Mr Harley's previously expressed attitude, I do not consider that the latter was a foreseeable and not insignificant risk; nor was there any basis to think other persons were likely to deal with the system, and in that respect there was no foreseeable and not insignificant risk. In these circumstances, Mr Dick was not negligent in failing within the weeks that had passed to have the system disconnected: Civil Liability Act , s 5B. 31If I be wrong about that the question of causation arises. 32The "but for" analysis in s 5D(1)(a) is satisfied because, on this hypothesis, if Mr Dick had not been in breach he would have attended to the disconnection promptly. Mr Harley would not have been dealing with live electricity on the day. Once again, the Civil Liability Act ss 5D(1)(b) and (4) are engaged. 33The conclusion that I have reached about the acts of Mr Harley being voluntary and free are relevant also to Mr Dick, but from a somewhat different perspective. The question is whether it is appropriate to conclude that the liability of Mr Dick for his breach of duty (on this hypothesis) should extend to Mr Harley's death in circumstances where Mr Dick's negligence was a necessary condition of the occurrence of harm. His negligence was (unlike Mr Stephens') temporally close to the event in question. Also, it was a duty to eliminate the risk, not merely warn of it. Mr Dick knew a job had to be done on the roof involving the vessel. He knew of the time that had passed since learning of the danger. He knew the job remained to be done. In those particular circumstances between these particular parties, if (contrary to my preferred view) there was a foreseeable and not insignificant risk that Mr Harley would take steps himself to deal with the vessel (even though Mr Dick did not encourage that course of action and even though it would have been negligent of Mr Harley to do it), given the different character of the duty of Mr Dick from that of Mr Stephens, given the different character of the respective breaches and given the differences in time and relationship of the breaches, it can be concluded that it is appropriate for the scope of Mr Dick's liability to extend to the death of Mr Harley for the purposes of ss 5D(1)(b) and (4). This would permit responsibility for what happened as between Mr Dick and Mr Harley to be resolved by the mechanism of contributory negligence rather than by truncating responsibility by applying s 5D(1)(b). On the hypothesis of Mr Dick's breach of duty, the operative effect of Mr Dick's negligence was not too tenuous for the conclusion of a causal link. 34As to contributory negligence, the view that I have previously conditionally expressed as between Mr Harley and Mr Stephens is relevant to, but does not govern, the position between Mr Harley and Mr Dick. The considerations of proximity in time and relationship between Mr Dick and Mr Harley (on this hypothesis) admit of a slightly smaller relative percentage of culpability to Mr Harley. There remains the over-riding consideration of Mr Harley's voluntary act. I would assess his contributory negligence at 80 per cent as between them separately. 35If I be wrong about both Mr Stephens' and Mr Dick's lack of liability and if apportionment is to be assessed in the context of two tortfeasors, Barisic v Devenport [1978] 2 NSWLR 111 requires that the plaintiff's responsibility be compared to the sum of the responsibilities of the defendants. In these circumstances, the matter is an evaluative one and not necessarily a simple addition of the respective proportions of Mr Stephens and Mr Dick assuming them to be singly liable. Overall, however, if both are legally responsible for the accident, an assessment of 65 per cent contributory negligence of Mr Harley and 35 per cent for the combined responsibility of Messrs Stephens and Dick is just and equitable. 36I would allow both appeals with costs (the respondent to have a certificate under the Suitors' Fund Act 1951 (NSW), set aside the orders of the District Court and in lieu thereof enter judgments for the defendants with costs and for the cross-defendants. 37HODGSON JA: These appeals arise from proceedings in which the first respondent to each appeal (Ms Giovenco) sued each appellant (Mr Dick and Mr Stephens) for damages under s 4 of the Compensation to Relatives Act 1897, by reason of an accident in which Ms Giovenco's partner Mr Harley died, and in which each appellant had cross-claimed against the other for contribution or indemnity. 38On 4 March 2010, Levy SC DCJ gave reasons for judgment, and ordered that there be a verdict and judgment for Ms Giovenco against each appellant in the amount of $350,000, and ordered the appellants to pay Ms Giovenco's costs: Giovenco v Dick [2010] NSWDC 4. The primary judge also ordered that the appellants bear responsibility for Ms Giovenco's judgment in the proportion 20 per cent to be borne by Mr Dick and 80 per cent to be borne by Mr Stephens. 39Each appellant appeals from that decision.

Factual Background 40I will commence with an outline of facts that are common ground or clearly proved. 41Mr Dick was the owner of a residential property in Abercrombie Street Darlington, which was let to tenants and managed by L J Hooker at Newtown. 42Prior to November 2001, hot water was supplied to these premises by a solar hot-water system on the roof. Prior to November 2001, one of the two solar panels of this system was damaged in a hailstorm that occurred on 14 April 1999. After the damage occurred, Mr Dick went onto the roof and inspected the damage. 43In November 2001, L J Hooker received a complaint regarding the operation of the solar hot-water system, and as agent for Mr Dick it retained Mr Stephens a plumber to inspect the hot-water system and identify the problem. 44On or shortly before 21 November 2001, Mr Stephens attended at the premises, and he went onto the roof and inspected the hot-water system. On that inspection, Mr Stephens did not interfere with the operation of the hot-water system by disconnecting it, disabling it or otherwise. While Mr Stephens was at the premises on that occasion, he saw an electrician Mr Sama at the premises, in the vicinity of the electricity fuse box. 45Mr Dick asked Mr Stephens for a quote to install a gas hot-water system, and Mr Stephens provided such a quote dated 21 November 2001. This quote, for $1,220 plus GST, included as part of the work "Disconnect hot and cold water only to existing H.W.S and drain" (Blue 20). 46On 23 November 2001, Mr Stephens delivered to the premises a gas hot-water system to be installed at ground level at the rear of the premises, and this hot-water system was installed there, rendering the solar hot-water system redundant. Some part of the work of installation was carried out by an employee of Mr Stephens, one Craig Harder. 47At no stage during the installation was there an inspection by Mr Stephens or Mr Harder of the electrical board at the premises, and no steps were taken to disconnect the electricity supply to the solar hot-water system. Mr Stephens did not speak to Mr Dick to advise him of the need to have an electrician disconnect the electricity supply to the redundant hot-water system on the roof, or to seek advice from an electrician as to what needed to be done, nor was such advice given in Mr Stephens' written quote or his invoice. 48Mr Stephens rendered an invoice dated 11 January 2002 to L J Hooker, which stated among other things "Redundant solarhart H.W.S on roof drained & cut off from water supply" (Blue 177). 49In 2003-04, Mr Harley performed a number of modest handyman tasks at the premises at the request of Mr Dick. These included affixing tiles in a bathroom, fixing a tap washer, and some timberwork at the front of the premises. 50In about February or March 2004, Mr Dick and Mr Harley discussed a stain in a corridor suggesting a leak in the roof; and Mr Harley agreed to look at the roof of the premises (Blue 72-73). 51In about August or September 2004, Mr Harley inspected the roof and the redundant solar hot-water system, together with an assistant William Gell. Mr Gell observed water leaking from a pipe at the hot-water system, which was steaming hot; and there was a conversation between Mr Harley and Mr Gell identifying the risk of working on the system while it was potentially still electrified. Following this conversation, Mr Harley made a call on his mobile phone. 52On 23 October 2004, at about 1.30pm, Mr Harley left home to work on the roof at the subject premises. At about 1.40pm, one of the occupants of the premises, Kate Symonds, opened the back gate to allow him access to the roof. At about 2.00pm a neighbour, Jennifer Sams, observed Mr Harley on the roof wearing white overalls; and she also said that around that time the gutter was overflowing with water, and there had been a loud noise. 53At about 2.30pm, Mr Harley returned home and changed into shorts and a T-shirt, and then he returned to work at the premises. Before leaving home, he said to Ms Giovenco that he had to call an electrician. Some time later, and before 9.45pm, Mr Harley was electrocuted, by electricity that was still connected to the solar hot-water system, and he was killed. Mr Harley had removed the cover to the electrical panel on the storage tank for the hot-water system.

Decision of primary judge 54The primary judge commented adversely on the credibility of Mr Dick and Mr Stephens. He found himself unable to rely on self-serving and exculpatory aspects of Mr Dick's 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 (judgment [99]); and the primary judge also said he could not accept as reliable the evidence of Mr Stephens to the effect that water connections to the redundant hot-water system were disconnected (judgment [103]). 55The primary judge found that Mr Dick knew there was a remaining live and active electrical connection to the redundant hot-water system, and that a reasonable person in Mr Dick's position ought to have known this (judgment [132]-[133]); and that as a consequence he owed a legal duty to ensure that the electricity supply was disconnected from the redundant system. He found that Mr Stephens owed a legal duty to advise Mr Dick of the need to effect a disconnection of the electricity supply to the redundant system. 56The primary judge 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; that each defendant was in breach of his duty of care; and that Ms Giovenco had satisfied the requirements of the Civil Liability Act 2002 with regard to proof of negligence and causation. 57The primary judge found that the defendants had failed to discharge the onus they carried for proof of contributory negligence by Mr Harley. On this matter, he made the following findings at [279] and [299]: [279] On a factual approach I do not consider that Mr Harley should be taken to have been aware of an obvious risk, namely, the risk of harm from electrocution. I have come to this view because, like Mr Dick, he was under the impression, given to him by Mr Dick, that the solar hot water system was redundant and had no live electrical connection. The difference in the state of knowledge between Mr Harley and Mr Dick is that Mr Dick ought to have known differently whereas, for the reasons outlined in my analysis of the defendant's contributory negligence arguments, Mr Harley did not know of the residual electrical connection. [299] I do not accept there was a failure on the part of Mr Harley to ensure that the solar hot water system had been decommissioned. The scope of Mr Harley's work did not involve decommissioning the redundant system. It was clear from Mr Dick's version of events that it was his understanding that he thought, incorrectly as it turned out, as has been proven by the fact that Mr Harley was electrocuted, that the system had been decommissioned by the work that was performed by Mr Stephens. There is no evidence that Mr Dick informed Mr Harley of the need to check the system for the presence of a live electrical connection. I consider that in these circumstances Mr Harley was entitled to assume that as the system was redundant, in disuse and was not connected to the electricity supply. I find this to be especially so in the context of a discussion between Mr Harley and Mr Dick to the effect that the unit may have to be taken down. In that discussion Mr Dick's concerns were not about the safety aspect of the electrical connections, but rather, he was concerned about the cost of the removal. 58Also, at [323], the primary judge indicated that he could not make a finding that it was Mr Harley who removed the cover of the electrical panel on the hot-water storage tank.

Issues on appeal 59Both appellants have filed lengthy notices of appeal, raising many allegations of error, and Ms Giovenco has filed a notice of contention in each appeal. The most significant issues raised are as follows: (1) Alleged error of primary fact in finding that Mr Dick knew (or ought to have known) that there was a live electrical connection to the redundant hot-water system (Dick appeal grounds 3 and 6 to 18). (2) Alleged error of primary fact in finding that Mr Dick authorised or instructed Mr Harley to remove the redundant hot-water system (Dick appeal ground 23). (3) Alleged error of primary fact in not finding that Mr Harley knew there was a live electrical connection to the redundant hot-water system (Stephens appeal grounds 8 to 15, Dick appeal grounds 27 to 36). (4) Alleged error of primary fact in not finding that Mr Harley removed the cover to the electrical panel (Stephens appeal grounds 16 to 19, Dick appeal grounds 37 to 40). (5) Further finding of fact sought, that Mr Harley took steps to turn off the electrical supply to the solar hot-water system, and worked on it in the mistaken belief that there was no electrical current flowing to it (notices of contention). (6) Alleged error of law (or combined fact and law) in finding that Mr Stephens owed Mr Harley a duty of care (Stephens appeal ground 1). (7) Alleged error of law (or combined fact and law) in finding that Mr Dick owed Mr Harley a duty of care (Dick appeal grounds 1 to 2). (8) Alleged error of law in not finding that Mr Dick's duty of care was excluded by ss 5F and 5G of the Civil Liability Act (Dick appeal ground 20). (9) Alleged error of fact (or combined fact and law) in finding that Mr Stephens breached his duty of care and that such breach caused Mr Harley's death (Stephens appeal grounds 2 to 5 and 20). (10) Alleged error of fact (or combined fact and law) in finding that Mr Dick breached his duty of care and that such breach caused Mr Harley's death (Dick appeal grounds 4, 5, 19 and 22 to 26). (11) Alleged error of fact (or combined fact and law) in finding that there was no contributory negligence by Mr Harley (Stephens appeal grounds 6 and 20; Dick appeal grounds 41 to 46). (12) Alleged errors in apportionment (Stephens appeal ground 7; Dick appeal grounds 47 to 48).

Knowledge of Mr Dick 60On the question whether Mr Dick actually knew there was a live electrical connection to the redundant hot-water system, the primary judge made contradictory findings: at [132], he found he did know, while at [279] he found that he did not know but ought to have known. It is necessary for this Court to reach its own conclusion. 61On this question there was important evidence from Mr Gell. In a statement made to police on 17 November 2004, he said this (referring to Mr Harley as "Al"): 4. Around six weeks ago on a Friday, Al called me and I asked him if he needed any work done, which he did. Later that afternoon he came here. We went up on the roof of xxx Abercrombie Street, as there was a problem with the water system. We got up there and noticed that the glass was broken and there were wires running off of the tank. We felt the pipes on the tank and they were hot. We decided that it was best to leave it and get an electrician to look at it. 5. Al called the landlord on his mobile phone and asked him to arrange for an electrician to come out and look at the problem. 62In oral evidence on 23 March 2009, in cross-examination by Mr Dick's counsel Mr Gell gave this evidence: Q. Sir in paragraph 4 of your statement to the police you spoke of what you detected in the pipes; you said that you felt the pipes on the tank and they were hot? A. Yeah. Q. You go on to say that you decided that it was best to leave it, "We decided that it was best to leave it and get an electrician to look at it"? A. Yeah. Q. There was a discussion between you and Mr Harley on the roof about the merits of getting an electrician to look at the problem, is that right? A. Yes I obviously viewed the panels with Alan and came to the conclusion that the solar hot water panel wasn't working and it looked broken and there must be some other form of electricity running through the system to enable it to sort of heat the water to the temperature it was. So I basically told him that I wasn't going to touch it and we both agreed that it looked dangerous, so. Q. You told him that you weren't going to touch it because you were concerned about the possibility of electrical shock? A. Safety, exactly. Q. After the discussion that you had with him about the need to get an electrician to look at it he went off to make a phone call, is that right? A. Yeah we obviously discussed the electrician as well as the landlord, and then he proceeded to make a phone call; as I said in my statements at the time it was the landlord, but now I can't be a hundred per cent certain whether it was a landlord or the electrician. But he made a phone call, I can't recall what was said, I wish I could but unfortunately I can't. Q. Is one of the reasons that you can't recall what was said because you didn't overhear the conversation between-- A. That's correct I didn't hear the conversation word for word, but Alan was on the phone. Whether it was a voice message or a conversation I can't recall either, but I can recall he was on the phone, immediately after we came to the conclusion that we weren't going to touch the system. 63In cross-examination by Mr Stephens' counsel, Mr Gell gave this evidence: Q. Obviously Mr Gell when you made the statement not long after this happening you had a much better recollection than you do today of what occurred at the time on the roof? A. Yep. Q. Because the conversation you had on the roof was only about 2 months before you made the statement or thereabouts? A. That's correct. Q. You made a point of saying in the statement that AI had called the landlord. I guess might it be the case that at the time at least the landlord's name was known to you? A. No I can't remember any names recall - sorry I can't recall any names mentioned. Q. Is it possible that the police officer who took your statement was able to give you some names that might represent the name of the owner? A. No. Q. So when you say in your statement here that AI called the landlord, was that because of something that he said to you before he made the phone conversation? A. Yeah I guess it was the just generic landlord term, we were discussing obviously - at the time we discussed obviously that the landlord was obviously - he owned the property so he held the right to be able to make the decision of what Alan should and shouldn't do. Then there was a phone call made, that's what I recall. Q. The phone call followed immediately after the conversation he had with you about the need to consult the landlord before he did anything? A. That's correct yep. Yeah he made a phone call. 64In evidence, Mr Dick denied that he had been told by Mr Harley that there was a need for an electrician to assist in dismantling the hot-water system (Black 25N-O, 43, 46D-H). 65If one leaves aside Mr Dick's denial, the evidence of Mr Gell must be considered powerful evidence that Mr Harley telephoned Mr Dick and asked him to have an electrician look at the hot-water system. Plainly, that was Mr Gell's impression, just six weeks after the event. Giving evidence over four years later, Mr Gell could not be certain who it was that Mr Harley called and could not recall what was said; but his oral evidence was that he did not hear the conversation word for word, suggesting that he did hear something of it, and this suggests that his statement to police was based on what he heard as well as what he inferred. This, coupled with the circumstances that the call was made immediately after the two men observed hot pipes and discussed the need for an electrician, would justify a finding that the topic of the call was the need for an electrician to look at the hot-water system. In circumstances where Mr Harley was getting his instructions from Mr Dick, and apparently had no authority to engage an electrician on behalf of Mr Dick, the inference that it was Mr Dick that he called is very strong indeed. 66As noted earlier, the primary judge took an adverse view of Mr Dick's credibility, and he rejected Mr Dick's evidence to the effect that he was unaware that there was an electrical connection to the solar hot-water system (albeit, as noted earlier, making contradictory statement as to whether Mr Dick knew there was such a connection). No appeal is brought against the primary judge's assessment of Mr Dick's evidence. In those circumstances, having regard to the strength of the inference that it was Mr Dick who was telephoned by Mr Harley, in my opinion this Court should infer, on the balance of probabilities, that this is what happened, and that accordingly Mr Dick was then informed about the live electrical connection. 67In my opinion, the evidence does not justify an inference that Mr Dick knew at any earlier time that there was such a live connection. It could be inferred that he knew that a solar hot-water system had electrical back-up heating; but he may well have assumed that this was no longer live after Mr Stephens had done his work, and the evidence does not establish the contrary. Indeed, I would infer, from the fact that Mr Stephens did nothing about this at the time when he was taking the trouble to have the solar hot-water system de-commissioned, that he did assume this: cf judgment [279].

Authorisation of removal of hot-water system 68In his signed statement given to police on 21 December 2004, Mr Dick referred to the occasion in early 2004 when Mr Harley repaired the tap washer and did the timber work at the front of the house, and continued: 9. On this particular visit, I discussed with Allan over the phone the fact that there was a water stain along the ceiling in the upstairs hallway. Allan told me that he thought this may have been caused by a water leak through the roof capping which runs between the adjoining roof sections of my house and the neighbouring terrace. I remember Allan saying to me "I'll fix that for you one day". 10. Around six or eight weeks after this conversation, I called Allan asked him if he had had time to get up and have a look at the leaking roof. He said that he had been up on the roof, and the problem seemed to be different to what he had first thought. Allan told me that it looked like the water was getting through the bolts fixing the hot water system framework to the rooftop. He said he would get some sealer and seal the bolts and see if that fixed the leaking problem. I agreed for him to do this work and we also spoke about the fact that if this didn't fix the problem we would have to consider pulling the entire hot water system down from the roof altogether. 11. This last conversation was the last time I spoke to Allan Harley. I always paid Allan in cash as he was only ever doing small jobs for me. 69Also on 21 December 2004, Mr Dick was interviewed by a WorkCover inspector. The record of that interview included the following: Q35. Townsend: And how was Allan Harley engaged to do the work at the property? A: I met Allan two years previous to sort of now, he was doing some work on the unit next door, doing some painting and so forth. He introduced himself as a handyman and said if I ever needed anything give him a call. "I took his number and put it in my telephone and about a week after that because I was doing some renovations on mine as well because it was vacant. I rang Allan because I had run out of time and I couldn't do the tiling in the bathroom, so he actually went up and did ten tiles for me up in the bathroom. Then I hadn't spoken to Allan for probably, I don't know, it would be probably fourteen months after that, that they rang, Hooker's [sic] rang me and said there was a leaking tap or something that they were whingeing about and so I rang Allan and asked him if he could go and have a look at it for me, which he went and did. He also did some timberwork at the front of the place for me and in that time he mentioned to me that there was a big stain on the corridor, where you walk past the bathroom where he was working. He said your roof looks like it is leaking and I said yeah it has sort of been like that for a long time as far as I know, because when I bought it there was a stain on there. He said I will get up and have a look at it for you one day, he said the ridge capping is normally what plays up on these older places. I said okay. So I rang him probably oh two months, eight weeks probably after that to see if he had been up there to do anything. He said he had been up and had a look and he said it wasn't the ridge capping, he thought it was the actual bolts that holds the solar heating down on to the roof. He said they were very rusty. He said to me on that day that he would try some sealing around the bolts. He said if that didn't work we might have to pull the solar heating off the roof and I said well that's fine, I said see what you can do and get back to me and that's the last time I spoke to him. It was probably the middle of this year from memory. Q36. Townsend: The first time that Allan talked about getting up on to the roof to have a look at where the leak was, was roughly when? A: I would think probably February/March of this year. Q37. Townsend: Of 2004? A: Yes.

70In oral evidence, Mr Dick referred to pars 9 to 11 of his statement to police; and he said that he had, in January 2009 (Black 42), recalled a conversation with Mr Harley after the conversation referred to in pars 10 and 11 of his statement, when Mr Harley telephoned him; but Mr Dick did not remember whether Mr Harley said he had been up and sealed the bolts, or said he was going up to seal the bolts (Black 24). 71It was submitted to the primary judge for Mr Dick that in none of the conversations did he instruct or authorise removal of the solar hot-water system. The primary judge held to the effect that dismantling the hot-water system was within the scope of what Mr Dick authorised Mr Harley to undertake (judgment [75], [98], [187], [291] - [295], [317]). 72On appeal, it was submitted for Mr Dick that the primary judge erred and denied procedural fairness in rejecting Mr Dick's evidence to the effect that he did not authorise or instruct Mr Harley to remove the redundant hot-water tank, in circumstances where it was not put to Mr Dick nor submitted by any party that he did so. 73In my opinion, it was squarely put to Mr Dick that the request to Mr Harley was to fix the leak, and that Mr Dick expected Mr Harley to do whatever was needed to be done to fix the leak (Black 29); that Mr Harley had raised with him the prospect that, if sealing the bolts did not work, it might be that the whole hot-water system had to be pulled down (Black 39); and that this might be a necessary step (Black 47). 74In my opinion, having regard to what Mr Dick said in his statement to police and his interview with the WorkCover inspector, and to the primary judge's view of Mr Dick's reliability, it was well open to the primary judge to reach the view that the instructions given by Mr Dick to Mr Harley were in substance to do what was required to fix the leak, including if necessary removal of the hot-water system.

Mr Harley's knowledge 75The primary judge held that Mr Harley was under the impression that the hot-water system had no live electrical connection (judgment [279]). He held there was no evidence that on the day of Mr Harley's death, Mr Harley was confronted with the same observations that he saw when he inspected the roof with Mr Gell some weeks earlier (judgment [282], [307] - [313]); and the primary judge said that Mr Gell's evidence had little probative value (judgment [309] - [312]), that Mr Harley's knowledge could not be presumed to have continued in the absence of evidence bringing that knowledge forward (judgment [311]), and that accordingly Mr Gell's evidence had no probative value to the issue of contributory negligence (judgment [313]). 76The primary judge held that it was unwarranted speculation that the discussion with Ms Giovenco about needing to call an electrician had anything to do with the job at Mr Dick's premises (judgment [297], [314] - [315]); and that the appellants could and should have called Ms Giovenco to clarify what was said on this occasion. 77In my opinion, this approach by the primary judge discloses appealable errors. 78It was an agreed fact that there was a conversation between Mr Gell and Mr Harley identifying the risk of working on the system while it was potentially still electrified. The primary judge in effect treated this as merely an assumption (judgment [307] - [308]). In the light of that agreed fact, and Mr Gell's evidence of what was seen and discussed, the primary judge should have found that Mr Harley was at that time aware that electricity was connected to the hot-water system. In circumstances where the evidence suggested no reason why Mr Harley would have come to believe that anyone else had disconnected the electricity, it was an error for the primary judge in effect to hold that he could not presume this knowledge continued in the absence of evidence that it continued. In my opinion, there was no occasion for the appellants to have called Ms Giovenco as a witness; and it could not reasonably be regarded as unwarranted speculation to infer that the reference to a need to call an electrician related to the job that Mr Harley was then doing, that is, the job at Mr Dick's premises. This is an inference that could be drawn, and in my opinion it should be drawn. 79In my opinion, it should be found as a fact that Mr Harley was on 23 October 2004 aware that there was a live electrical connection to the hot-water system.

Removal of cover 80The primary judge did not find that Mr Harley removed the cover to the electrical panel on the hot-water storage tank, holding that this would be speculation. 81It was an agreed fact that Mr Harley had removed this cover, and it was supported by compelling inferences. The primary judge was plainly in error on this matter.

Steps to turn off the electricity supply 82It was submitted by Mr S G Campbell SC for Ms Giovenco that it should be inferred that Mr Harley switched off the electricity to the premises at the electricity power board, but by mistake did not switch off the power to the solar hot-water system, which had a separate connection. 83Mr Campbell submitted that the evidence showed Mr Harley was a sober and careful person. The conversation with Mr Gell showed that Mr Harley was aware of the need to have the power disconnected or switched off. On 20 October 2004, Mr Harley went on to the roof to deal with the leak. From the evidence of Ms Sams, it can be inferred that as he was working, one end of the water storage tank crashed on to the roof and a considerable amount of water ran out. Mr Harley then went home, changed and said he needed to call an electrician. It should be inferred that Mr Harley considered that something had to be done, as live power was still going to the heater, but the tank had now collapsed and water had run out. It should be inferred that Mr Harley was not able to get an electrician to attend, the house was unoccupied, and accordingly (Mr Campbell submitted) it should be inferred that Mr Harley himself set about turning the power off. 84A contemporary entry in the notebook of the WorkCover inspector showed that when Peter Loy from Energy Australia, attended the premises at about midnight on 20 October 2004, he found the switches on the power board turned off (Blue 118). The statement of Constable Locke, who attended at around 10.43pm does not record that he turned the power off. The notebook of the WorkCover inspector also recorded information provided by one tenant Ms Symonds on 17 November 2004, that no tenants were in the house at the time of the accident, that the tenants came home at about 5.00pm, had dinner, went out, and returned about 9.00-10.00pm, when they found Mr Harley's family at the door (Blue 89). Mr Campbell submitted that this was consistent with the electricity being turned off at the time of the accident. 85However, other material suggests that the tenants were inside the house when Mr Harley's family came to look for him at about 9.40pm, so that they would have noticed if the electricity had been turned off. A statement of Ms Symonds dated 17 November 2004, states that she came downstairs at about 9.40pm and saw two ladies outside (it may be inferred that one was Ms Giovenco) (Blue 60). The statement of another tenant Fiona Powell says "we all" went to the pub at about 7.30pm, got back around 9.30pm and went to bed, and at about 9.45pm heard a knock on the door (Blue 59). In Ms Giovenco's interview on 29 November 2004, she said that when she went to the property the girls were home in the house (Blue 95); and in her statement dated 17 November 2004, she said that one of the girls answered the door (Blue 41). A similar statement was made by a man who went with Ms Giovenco (Blue 54). 86In my opinion, the evidence favours the view that tenants came home and went inside about 10 or 15 minutes before Ms Giovenco came looking for Mr Harley; so that if the power had been off in the house, they would have noticed it and said something to that effect. In those circumstances, I would not infer on the balance of probabilities that Mr Harley turned the power to the house off. On the other hand, I would not infer that he must have acted with recklessness or gross negligence. It is not possible to infer exactly what he thought he was doing, or what precautions he had taken or believed he had taken; and while it must be inferred that Mr Harley was negligent, I do not think it should be inferred that he was reckless. 87Indeed, I would infer, in favour of Ms Giovenco, that Mr Harley did not recklessly court death, and that his conduct was not reckless in the sense that he appreciated that his death or serious injury was a possible consequence of his actions and went ahead without caring whether this happened or not. I would infer that the most probable explanation for what happened is that Mr Harley underestimated the degree of risk that was involved in what he was doing, and over-estimated his own ability to deal with that risk. In my opinion, while this did amount to a significant failure to exercise reasonable skill and care for his own safety, it is an example of ordinary human fallibility rather than something to be characterised as grossly negligent.

Duty of care of Mr Stephens 88It was submitted by Mr A D M Hewitt SC for Mr Stephens that no duty of care was owed by Mr Stephens to Mr Harley or to any class of persons including Mr Harley. Mere disconnection of the solar hot-water system, and installation of a gas hot-water system, posed no danger that any other hot-water system would not pose. No one would have in contemplation that anyone would remove the cover to the electricity connection and thereby access live electricity wires. In particular, no duty of care could be owed to anyone who, like Mr Harley, knew there was a live electrical connection to the hot-water system. The requirements of s 5B(1) of the Civil Liability Act were not satisfied: no non-significant risk was foreseeable, and it was not the case that a reasonable person in Mr Stephens' position would have taken precautions. 89In assessing this question, it is relevant that the hot-water system was already broken (one of the two panels was smashed), and the tank was observed by Mr Stephens to be rusting. This process of rusting which had commenced would continue. In my opinion it was foreseeable that, at some time in the future, someone would need to take steps to remove this redundant, broken and rusting structure from the roof; and if at that time there was still live electricity connected to it, that person would be at risk of extremely serious injury. It might be said that the risk was one of low probability, because such a person would consider the possibility that electricity might still be connected, and take appropriate precautions. But if at the time the structure was obviously disused, broken and rusting, this danger might not occur to such a person; and even accepting that the probability of harm was quite low, the extent of possible harm was extremely high. 90The job for which Mr Stephens quoted included the disconnecting of water to the existing hot-water system and draining it, and did not refer to disconnecting electricity. As submitted for Mr Stephens, there was no expert evidence to the effect that if water was disconnected and the tank drained, a live electricity connection would give rise to a danger of overheating and/or shorting. However, Mr Stephens did not explicitly exclude disconnecting the electricity, and in my opinion an owner could reasonably assume that the existing hot-water system was to be effectively de-commissioned. Having regard to the extent and nature of the risk I have identified, in my opinion a reasonable person in the position of Mr Stephens would take the (easily taken) precaution of making it clear to the owner that the job he was doing did not include disconnecting the electricity, and that this should be done. In my opinion there was a duty of care, owed to persons who might be exposed to a risk of electrocution in taking steps to remove the redundant hot-water system, to do just this. 91I have found that by the time of the accident, both Mr Dick and Mr Harley were aware that the electricity had not been disconnected. In relation to Mr Dick's knowledge, this does not affect the question of duty and breach by Mr Stephens, but does affect the question of causation, which I will deal with later. In relation to Mr Harley's knowledge, this could affect the question of duty and breach, as well as affecting questions of causation and contributory negligence. 92In relation to duty and breach, the question is whether Mr Stephens' duty was owed, not to all persons who might in the future be exposed to electrocution in taking steps to remove the redundant hot-water system, but only to those who were not aware that there was a live electrical connection to the hot-water system. In my opinion, such a narrowing of the class to which the duty is owed is not justified: the whole of the wider class would be at some risk (albeit that a person knowing of the connection would be at substantially less risk); and the same very simple precaution that I have identified would appropriately reduce the risk to the whole of the wider class. 93I note that Allsop P says that if the duty is not limited as he suggests, it is difficult to see why the duty would not be owed to a trained electrician later retained to disconnect the power. I respectfully disagree. In the circumstances, what is required by the duty is advice given with the object of ensuring that it is a trained electrician who deals with the problem, so that the duty could not be owed to such an electrician retained to do just that. As regards other people, the existence of ordinary human fallibility of varying degrees and the possibility of greatly varying degrees of knowledge of and understanding about electrical connections and their significance, coupled with the circumstance that it is the same obvious and simple precaution to be taken in respect of all people (apart from trained electricians), confirms to me that the duty should not be narrowed, and that questions about knowledge and understanding of the risk should be dealt with in considering causation and contributory negligence. A reasonable person in Mr Stephens' position would have in mind a risk to anyone (apart from a trained electrician) dealing with the redundant system, and would not draw distinctions between different classes of such persons, having regard to what they might know about solar hot-water systems in general and this one in particular. 94In my opinion, this approach is consistent with what was said by Mason CJ and Deane, Dawson and Gaudron JJ in Nagle v Rocknest Island Authority [1933] HCA 76; (1993) 177 CLR 423 at 431: It is now well established that a person who owes a duty of care to others must take account of the possibility that one or more persons to whom the duty is owed might fail to take proper care for his or her own safety. See also Bus v Sydney County Council [1989] HCA 29; (1989) 167 CLR 78 at 90-91. 95In my opinion it is also consistent with the High Court decision in Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330. In that case, Gummow J said at [47]: [47] The RTA's duty of care was owed to all users of the bridge, whether or not they took ordinary care for their own safety; the RTA did not cease to owe Mr Dederer a duty of care merely because of his own voluntary and obviously dangerous conduct in diving from the bridge. However, the extent of the obligation owed by the RTA was that of a roads authority exercising reasonable care to see that the road is safe for users exercising reasonable care for their own safety. The essential point is that the RTA did not owe a more stringent obligation towards careless road users as compared with careful ones. In each case, the same obligation of reasonable care was owed, and the extent of that obligation was to be measured against a duty whose scope took into account the exercise of reasonable care by road users themselves. This statement supports the view I have expressed that Mr Stephens' duty is not owed only to those who do not know of the electricity connection. 96It could be argued that this statement by Gummow J counts against the existence of any duty, because (it could be argued) a risk of electrocution exists only in relation to persons not taking reasonable care for their own safety. In my opinion, that aspect of what was said by Gummow J (and of the decision of the majority) in Dederer , adopting and applying the decision in Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, relates to the duty of road authorities, the extent of which is in general measured by reference to the requirements of road users who take reasonable care. In other areas, the principles stated in cases such as Nagel and Bus confirm that the scope of the duty of care is not so narrow. 97It was submitted by Mr Hewitt that to find a duty of care in this case would be to impose a liability for an omission, contrary to such cases as Modbury Triangle Shopping Centre Pty Limited v Anzil [2000] HCA 61; (2000) 205 CLR 254, and Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424. 98In my opinion, this case cannot be considered in terms of liability for an omission, or a duty of care to take positive action. Rather, a duty here arose because Mr Stephens had undertaken and performed positive actions that gave rise to a danger, carrying with it an associated duty to take appropriate steps to mitigate that danger. It is a case where Mr Stephens' own actions gave rise to a risk of harm that was foreseeable and not insignificant (within s 5B(1) of the Civil Liability Act ), and where a person in Mr Stephens' position would have taken the precaution of giving the owner of the premises the advice that I have referred to.

Duty of care of Mr Dick 99Mr Sexton SC for Mr Dick submitted that there was no relevant duty of care owed by Mr Dick to the deceased or to a class of persons including the deceased. He submitted that the duty of a landlord owed to third parties was narrower than that owed by an occupier, and it was owed only in respect of a dangerous defect of which the landlord knew or ought to have known: Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 at [197], [176] - [180]. He submitted that the hot-water system was not a dangerous defect, but was safe unless someone did something that was obviously very dangerous. He submitted there was no finding that Mr Harley was misled into believing there was no live electrical connection; and that on the contrary, Mr Harley knew there was such a connection. 100In my opinion, the support given by Jones v Bartlett to a narrower duty owed by landlords than that owed by occupiers has no application in this case. It was Mr Dick who authorised Mr Harley to go on to the roof of the property to deal with the leak associated with the redundant hot-water system. In my opinion it matters not whether this was pursuant to Mr Dick's right as occupier of the roof (if the roof was not part of what was leased to tenants), or pursuant to a landlord's right to enter the premises to effect repairs, or pursuant to permission from the tenants. In my opinion, Mr Dick's duty to Mr Harley was no less than that of an occupier to a person licensed by that occupier to go on to the premises. 101In my opinion Mr Dick did have a duty to Mr Harley to exercise reasonable care not to expose Mr Harley to significant risks of which Mr Dick knew or ought to have known, being a duty to take precautions which a reasonable person in Mr Dick's position would have taken in relation to such risks. The question of the scope of that duty, in relation to the electrical connection to the redundant hot-water system, in circumstances where the existence of that connection had been the subject of discussion between them, is more appropriately considered in relation to the question of breach, to which I will come.

Civil Liability Act ss 5F and 5G 102Sections 5F, 5G and 5H of the Civil Liability Act provide as follows: 5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person ( the defendant ) does not owe a duty of care to another person ( the plaintiff ) to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection. 103In my opinion, the risk of electrocution from the live electrical connection per se was not an obvious risk. The risk from removal of the cover to the electrical panel on the storage tank could be considered an obvious risk; and the risk of electrocution must be considered obvious to a person who knew that there was a live electrical connection to the hot-water system. 104It follows in my opinion that there was no duty of care owed by Mr Dick to Mr Harley to warn Mr Harley of this risk; and to that extent the general duty of care referred to in a previous section is cut down. If there was any breach of duty by Mr Dick to Mr Harley, it cannot consist in a failure to warn Mr Harley of the risk of electrocution from removal of the cover of the electrical panel. 105I note that s 5H has no application in relation to Mr Stephens' duty of care. Even if the risk of electrocution from the live electrical connection could be considered obvious, Mr Stephens' duty to Mr Harley was not to warn Mr Harley but rather to warn Mr Dick, who is not the plaintiff or a person on whom the plaintiff's rights depend.

Breach of duty by Mr Stephens causing Mr Harley's death? 106In my opinion, it is clear that there was a breach of duty by Mr Stephens in not giving Mr Dick the advice that there was still a live electrical connection to the hot-water system and that it needed to be disconnected. 107However, for two reasons in particular, it could be doubted that this was causative of Mr Harley's death: (1) Mr Dick later learned from Mr Harley that there was still a live connection; and (2) Mr Harley's death could be considered as resulting from a free, informed and voluntary act by Mr Harley negating the causal connection. 108The question of causation must be addressed having regard to s 5D of the Civil Liability Act , which is as follows: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 109The first of the reasons referred to above relates to the requirement in s 5D(1)(a). Satisfaction of that requirement in relation to causation of Mr Harley's death by Mr Stephens' negligence requires a finding that, had Mr Stephens given Mr Dick the required advice, this would have averted Mr Harley's death; and this in turn, in my opinion, requires a finding on the balance of probabilities that Mr Dick would then have ensured that the electricity was disconnected from the hot-water system. Mr Dick gave evidence that if Mr Stephens had given the advice, he would have contacted Hookers to have the electricity disconnected; but the question is whether a finding to that effect should be made, having regard to the primary judge's adverse view of Mr Dick's credit and in the light of this Court's finding (contrary to Mr Dick's evidence) that Mr Dick was later told by Mr Harley of the live connection and had not then had it disconnected. 110In my opinion, the necessary finding should be made. At the time when Mr Stephens should have advised Mr Dick of the need to disconnect the electricity from the hot-water system, Mr Dick was in the process of dealing with the problem created by the defective hot-water system and the need to replace it; and he was taking steps appropriate to achieve this, including engaging a suitable tradesperson. In my opinion, it is more probable than not that, if at that time Mr Dick had known that some additional step was required to do that job properly, he would have taken that step. The situation was different when Mr Harley spoke to him over two years later: this was at a time when Mr Dick was concerned merely with addressing a leak in the roof. In my opinion, the circumstance that Mr Dick did not then act promptly to have the electricity disconnected does not weigh heavily against the necessary finding. 111The second of the reasons referred to above relates to the requirement in s 5D(1)(b) that it be appropriate for the scope of the negligent person's liability to extend to the harms so caused. 112In relation to this matter, Mr Sexton referred to Haber v Walker [1963] VR 339 at 358, where Smith J said: ... the main principles, I consider, are these. In the first place a wrongful act or omission cannot ordinarily be held to have been a cause of subsequent harm unless that harm would not have occurred without the act or omission having previously occurred with such of its incidents as rendered it wrongful. Exceptions to this first principle are narrowly confined. Secondly, where the requirements of this first principle are satisfied, the act or omission is to be regarded as a cause of the harm unless there intervenes between the act or omission and the harm an occurrence which is necessary for the production of the harm and is sufficient in law to sever the causal connexion. And, finally, the intervening occurrence, if it is to be sufficient to sever the connexion, must ordinarily be either (a) human action that is properly to be regarded as voluntary, or (b) a causally independent event the conjunction of which with the wrongful act or omission is by ordinary standards so extremely unlikely as to be termed a coincidence ... 113This passage was referred to with approval by McHugh J in Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49 at 55, where his Honour said: Under the common law theory of common sense causation, a free, informed and voluntary act of the plaintiff or a third party, which builds on a situation resulting from the defendant's tort and causes loss or damage to the plaintiff, negatives any causal connection between that tort and the loss or damage. That is so even though the act of the plaintiff or third party would not have occurred but for the defendant's tort. .. 114Mr Sexton also referred to Hunter Area Health Service v Presland [2005] NSWCA 33; (2005) 63 NSWLR 22 at [88], [211] - [212], and [293]. 115I n my opinion there was not in this case a "free, informed and voluntary act" of the kind referred to by McHugh J in Gardikiotis : what McHugh J was referring to was a free, informed and voluntary act of which the very consequence for which damages were sought was an intended consequent or a foreseen and accepted consequence. What occurred in this case may be considered a free and voluntary act, which was informed to the extent that Mr Harley knew that electricity was connected to the hot-water system; but it was not an act of which the electrocution of Mr Harley was an intended consequence or a foreseen and accepted consequence. Even if it were sufficient that the consequence was foreseen as a possibility, and the plaintiff or third party went ahead not caring whether it happened or not, that was not the case here. 116When a person deliberately drives at a speed in excess of the speed limit, this is in a sense a free, informed and voluntary act; but it does not altogether relieve another driver who is driving negligently from liability if a collision occurs, where the collision would not have occurred if either driver had been driving with due care. If one person creates a risk of injury to another person, and that other person by a voluntary act causes that risk to come home, the first person would generally not be relieved of liability unless the injury was an intended consequence or a foreseen and accepted consequence of that other person's act. 117When I come to assess apportionment, I assess Mr Stephens' proportion at 20 per cent, in circumstances where I find that the contributory negligence of Mr Harley should be assessed at 60 per cent. On the issue of contributory negligence, the onus is on the defendants as to its existence and quantification, and unclarity about why Mr Harley did what he did is to be resolved in favour of the plaintiff rather than the defendants. On the issue of causation, the onus is squarely on the plaintiff, and so unclarity as to precisely why Mr Harley did what he did is to be resolved in the defendants' favour rather than the plaintiff's favour. However, even on that basis I would find that Ms Giovenco has proved that a fair assessment of the defendants' responsibility for the accident is at least 20 per cent, of which 10 per cent should be attributed to Mr Stephens. 118Having regard to my views on what constitutes a free, informed and voluntary act, and in particular having regard to my views as to a fair apportionment of responsibility, I think it must follow, in terms of s 5D(1)(b), that it is appropriate that the scope of Mr Stephens' liability be extended to the harm, with the extent of that liability being determined by the application of contributory negligence and other apportionment principles. 119Accordingly in my opinion, Mr Stephen's negligence was a necessary condition of the incurrence of the harm, and it is appropriate that the scope of Mr Stephens' liability extend to this harm, within the meaning of s 5D(1) of the Civil Liability Act ; although the subsequent knowledge of Mr Dick and Mr Harley is very relevant to the question of apportionment. In my opinion, causation is established.

Breach of duty by Mr Dick causing Mr Harley's death? 120I have upheld the finding of the primary judge that the instructions given by Mr Dick to Mr Harley were in substance to do what was required to fix the leak, in circumstances where both recognised that this could require removal of the hot-water system. I have made a finding that, about six weeks before the accident, there was a conversation between Mr Harley and Mr Dick in which Mr Harley advised Mr Dick of the existence of the live connection and the need to do something about it. 121I have made no finding that Mr Dick said he would have the electricity disconnected or that he later said he had done so; and in my opinion there is no basis for any such finding. The question of breach of duty must be considered on the basis that there were the communications referred to in the previous paragraph, but it was not proved that there were any other relevant communications. 122In my opinion, a reasonable person in Mr Dick's position would have foreseen a risk that, if the electricity remained connected, Mr Harley could go on to the roof and find himself in a position where something needed to be done to the hot-water system; and even though Mr Harley knew that the electricity was connected and would remain connected unless Mr Dick had it disconnected, this did not eliminate the risk. In my opinion a reasonable person in Mr Dick's position would have said to Mr Harley to put off attending to the leak until Mr Dick had caused the electricity to be disconnected, and would have promptly engaged an electrician to have the hot-water service disconnected. 123As noted above, it is not possible to make a finding as to what if anything Mr Dick said to Mr Harley about putting off attending to the water leak or about Mr Dick causing the electricity to be disconnected; but it is clear that Mr Dick did not promptly engage an electrician to have the hot-water service disconnected. Further, Mr Dick's untrue denial that he was told by Mr Harley that the electricity was still connected, whether the untruth be fully conscious and deliberate or not, strongly suggests appreciation by Mr Dick that if he had been told, he should have done something about it before the time when Mr Harley went back on the roof and was electrocuted. In my opinion, breach of Mr Dick's duty was proved. 124As regards causation, there was not in my opinion any relevant intervention of a free, informed and voluntary act by Mr Harley, for the same reasons as before. In my opinion, the requirements of s 5D(1) of the Civil Liability Act are satisfied, and causation is established.

Contributory negligence 125I have found that the primary judge was in error in not finding that Mr Harley knew of the live electrical connection to the hot-water system. In my opinion it should be inferred that, on the balance of probabilities, Mr Harley did not exercise reasonable care for his own safety, and contributory negligence is established.

Apportionment 126I have said that I would not infer that Mr Harley acted with recklessness or gross negligence; but in my opinion, of the three persons whose negligence contributed to the accident, the responsibility of Mr Harley must be considered the greatest, both in terms of degree of negligence and in terms of causative influence. 127As between Mr Stephens and Mr Dick, I would assess their responsibility as equal. 128I would reduce the damages by 60 per cent by reason of Mr Harley's contributory negligence, and I would find Mr Stephens and Mr Dick equally liable for the remaining 40 per cent.

Conclusion 129In the result, I would allow both appeals, and reduce the damages awarded to Ms Giovenco to $140,000, responsibility for which is to be borne equally by Mr Stephens and Mr Dick. I note that this would not reduce the amount ultimately payable by Mr Dick; but his appeal would still be allowed, because he would succeed on the issue of contributory negligence and because his overall liability to Ms Giovenco would be reduced. 130On costs, my tentative view is that both appellants should remain liable for the costs below. As regards the costs of the appeal, Ms Giovenco in substance conceded error on contributory negligence; and if the appeal had been limited to the issues on which the appellants would succeed, it would have been much shorter and less expensive. 131The hearing lasted two days, most of which was spent on matters on which the appellants would fail. Mr Stephens would have had substantial success, reducing his ultimate liability from $280,000 to $70,000; but having regard to the costs incurred on issues on which he would fail, my tentative view is that there should be no order as to costs as between him and Ms Giovenco. Mr Dick would not have reduced his ultimate liability, and my tentative view is that he should be ordered to pay one-half of Ms Giovenco's costs of the appeal. 132I propose the following orders: (1) Appeals allowed. (2) Orders (a) and (c) below set aside and in lieu thereof: (a) Verdict and judgment for Ms Giovenco against each defendant in the sum of $140,000. (c) Defendants to bear responsibility for Ms Giovenco's verdict and judgment equally. (3) Mr Stephens and Mr Dick to provide written submissions on costs within fourteen days, and Ms Giovenco to provide written submissions on costs within a further fourteen days. 133However, having regard to the reasons of Allsop P and Tobias JA, the orders proposed by Tobias JA best reflect the views of a majority of the Court, and on that basis I would give effect to those orders. 134TOBIAS JA : I have had the benefit of reading in draft the judgments of Allsop P and Hodgson JA in this matter. As the President has found that neither Mr Stephens nor Mr Dick is liable and Hodgson JA has found to the contrary, it falls to me to resolve that deadlock.

Mr Stephen's liability 135With respect to Mr Stephens, I agree with the President's analysis at [2]-[8] of his reasons in which he concludes that Mr Stephens did not owe Mr Harley a duty of care. In particular, his Honour has found that the scope of any such duty did not extend to Mr Harley - a conclusion with which I agree. 136I further agree with his Honour's analysis at [10]-[20] of his reasons on the issue of causation upon the assumption that Mr Stephens did owe Mr Harley a duty of care and that, if he did, it was undoubtedly breached. 137With respect to the issue of causation, I would add the following. As I am of the view that Mr Dick owed Mr Harley a duty of care which he breached, the point made by the President at [18] of his reasons as to the operative effect (or lack thereof) of Mr Stephen's breach of his duty of care, assumes greater significance although I acknowledge that the President's analysis in that paragraph proceeds, at least in part, on the hypothesis that Mr Stephens was in fact negligent. The intervention of Mr Dick's knowledge of the connection of electricity to the disused solar hot water system (the system) and his breach of his duty of care to Mr Harley by failing to heed Mr Stephens' assumed warning that the system should be disconnected, in my opinion bears strongly on whether, in terms of s 5D(1)(b) of the Civil Liability Act 2002 (the Act), it is appropriate for the scope of Mr Stephens' liability to extend to Mr Harley's electrocution. 138The most immediate temporal cause of Mr Harley's electrocution was Mr Dick's negligent conduct, not that of Mr Stephens'. It was the former who was informed by Mr Harley of the need to do something about the fact that the power supply was still connected to the system. One can infer that Mr Dick appreciated as a consequence of being so informed by Mr Harley, that the disconnection of the power supply was necessary to enable Mr Harley to safely complete the work that Mr Dick had engaged him to perform. Mr Dick had sole authority to engage an electrician to disconnect the power but failed to do so knowing that Mr Harley might, in the near future, return to the premises for the purpose of completing his job. 139In the foregoing circumstances it is Mr Dick, rather than Mr Stephens, who should bear the legal responsibility for Mr Harley's tragic demise. Accordingly, even if Mr Stephens was negligent, I agree with the President that within the meaning of s 5D(1)(b) of the Act, it is not appropriate for the scope of Mr Stephens' liability to extend to the harm caused to Mr Harley.

Mr Dick's liability 140With respect to Mr Dick, the President has found (at [30]) of his reasons that s 5B(1)(a) and (b) of the Act were not satisfied as Mr Harley was aware of the relevant risk of interfering with the system when it had not been disconnected from the power supply. However, the fact that Mr Harley was aware of that risk does not in my view mean that Mr Dick was unaware of the same risk. 141Having been advised by Mr Harley that the power supply was still connected to the system and that there was a need to do something about it, Mr Dick thereupon became aware that there was a foreseeable and not insignificant risk of electrocution to any person, including Mr Harley, who gained access to the roof before the power supply had been disconnected to the system. Although Mr Harley became aware of the fact that the power supply had not been disconnected when he ascended the roof on 23 October 2004, Mr Dick himself was not aware either that Mr Harley had accessed the roof or that, having done so, he had then became aware that the power was still connected. 142Although, as Hodgson JA remarks at [84] of his reasons, no finding should be made that Mr Dick said he would have the power supply disconnected or that he later said that he had done so, nevertheless, the inference is inescapable that the whole purpose of Mr Harley communicating to Mr Dick on the occasion that he ascended the roof with Mr Gell that the power was still connected to the system, was that Mr Dick would take steps to have the power disconnected before Mr Harley proceeded to complete the job he had been engaged to perform with respect to the leaking roof. In my view, so much was, or ought to have been, appreciated by Mr Dick. 143In the foregoing circumstances, it seems to me that it was also foreseeable from Mr Dick's perspective that Mr Harley would, after a period (and six weeks is more than sufficient), return to the building assuming that the power supply had been disconnected from the system. True it is that had Mr Harley exercised reasonable care for his own safety he would have first ascertained from Mr Dick whether the power supply had been disconnected before he accessed the roof of the premises. But in my view that failure goes to the issue of Mr Harley's contributory negligence rather than to the scope of Mr Dick's duty of care. 144Again, it is true that Mr Harley, when he did access the roof on 23 October, ascertained that Mr Dick had not heeded the advice he had given six weeks previously of the need to do something about the power supply to the system. Again, in my view, that fact was relevant only to Mr Harley's contributory negligence: it did not render the risk that was foreseeable when Mr Harley informed Mr Dick that the power was still connected, no longer foreseeable as Mr Dick was unaware of the fact that Mr Harley had returned to the premises. 145Accordingly, I agree with Hodgson JA at [86]-[87] of his reasons that Mr Dick breached his duty of care to Mr Harley. 146Both the President and Hodgson JA agree that if Mr Dick was in breach of his duty of care, then the causation requirements of s 5B(1) of the Act are satisfied. I also agree that that is the case. 147Finally, with respect to the issue of contributory negligence as between Mr Dick and Mr Harley, I agree with the President's assessment at [34] of his reasons that Mr Harley's contributory negligence should be determined at 80%.

Conclusion 148For the foregoing reasons, I agree with the President that the appeal should be allowed with respect to Mr Stephens but agree with Hodgson JA that it should in substance be dismissed with respect to Mr Dick. 149The question of the costs of the trial and the appeal are complicated by the differing views on liability of the members of the Court including the fact that there is now a majority view that Mr Dick is liable but Mr Stephens is not. Various permutations and combinations are therefore possible. As no submissions were directed to the issue, it is appropriate that the parties have the opportunity to do so. 150There are two possibilities in this regard. The first is that due to my retirement on 25 March next, if I am to be involved in the costs exercise, the timing of written submissions will of necessity need to be extremely tight. This course is further complicated by the fact that the President will be on leave when this judgment is published and will not be returning to active duty until 9 May 2011. 151The second and more satisfactory course is for the parties to have more time to consider the costs issue and to provide written submissions thereon but this will necessitate agreement by them that the question of costs may be determined by the President and Hodgson JA. 152Accordingly, for the foregoing reasons I would propose the following orders:

In matter number 2010/79805 (a)Appeal allowed; (b)Set aside Orders (a), (b), (c) and (d) made by his Honour Judge Levy SC on 4 March 2010 as far as they apply to the appellant and in lieu thereof: (i)verdict and judgment for the appellant against the first respondent; (ii)the appellant's cross-claim against the second respondent be dismissed; (c)The parties are to provide written submissions as to the costs of the trial (including the cross-claim) and the appeal in accordance with directions to be made on the publication of this judgment.

In matter number 2010/80871 (a)Appeal allowed; (b)Set aside Orders (a), (b), (c) and (d) made by his Honour Judge Levy SC of 4 March 2010 so far as they apply to the appellant and in lieu thereof: (i)verdict and judgment for the first respondent against the appellant in the sum of $70,000; (ii)the second respondent's cross-claim against the appellant be dismissed. (c)The parties are to provide written submissions as to the costs of the trial (including the cross-claim) and the appeal in accordance with directions to be made on the publication of this judgment.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 May 2011