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.