Sydney County Council v Dell'Oro

[1974] HCA 47

High Court of Australia|1974-07-01|Before: Jacobs JJ

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Source facts

Court

High Court of Australia

Decision date

1974-07-01

Before

Jacobs JJ

Source

Original judgment source is linked above.

Judgment (110 paragraphs)

[1]

High Court of Australia Barwick C.J. McTiernan, Stephen, Mason and Jacobs JJ. Sydney County Council v Dell'Oro [1974] HCA 47

[2]

ORDER Appeal allowed with costs. Order of the Supreme Court of New South Wales (Court of Appeal Division) set aside and in lieu thereof order that the appeal to that Court be allowed with costs, that the verdict and judgment entered for the respondent be set aside, and that verdict and judgment be entered for the appellants.

[3]

An electrical contractor - though himself unlicensed as an electrician - had worked on a consumer's electrical circuits in a city building in Sydney. Having completed his work, he had served the requisite notice on the Sydney County Council to inspect the work. An officer of that Council on the day in question attended the premises and inspected the work, one item of which was found faulty. Part of the work had rendered certain meters surplus to requirements and had caused the need to alter the County Council's supply to other meters. The removal of the surplus meters and the changes in connexion to other meters was work exclusive to the County Council's officer. To carry out this work it was necessary to remove a cover from a box on the wall of a small room in the basement of the building where the meters and the consumer's board were located. This room was usually locked but open this day to enable both the contractor and the Council employee to do their respective work. Within the box the links carrying the incoming supply were housed. Because they were uninsulated and carried electricity at a high voltage, the cover of the box was usually locked and sealed so that no unauthorized person could gain access to the links. The Council's officer, however, needed to effect a connexion from them to the meters. For this purpose he had identified the neutral link - a fact known to the contractor.

[6]

But, in my opinion, this generality of expression was misplaced so far as the present case is concerned. The deceased was a tradesman whose work of necessity carried him into close proximity to electrical power at levels which could be lethal. He was aware of the presence of the live links. The Council's officer was not required to take the same precautions with respect to the deceased as he might well be required to take in the case of a member of the public having no special knowledge or concern with the handling of electricity. The question for the trial judge and for the Court of Appeal Division was the precise nature of the relationship between the two tradesmen and of the duty, if any, related to the circumstances which the one, the Council officer, owed to the other in relation to the live links. This was a particular question not to be solved by generalities: it was particular to the operative cause of the injury. It is quite clear that nothing done or omitted by the County Council itself was related to the death of the deceased. It was said, however, that the Council officer was obliged to replace and reseal the cover of the box containing the links as a means of securing the safety of the deceased. But the deceased, a licensed electrician so far as the Council employee was concerned, was not only aware of the position and quality of the links but necessarily accustomed in the course of his tradesmanship to work in the presence and in proximity to such electrical conductors. Further, so far as the Council employee was concerned, nothing which the deceased had to do, including the changing of the position of the consumer's board, was likely to take the deceased into any dangerous relationship with those conductors. If foreseeability is called on to establish the existence of a specific duty on the part of the Council employee, in my opinion, it was not foreseeable that a qualified tradesman would place himself, quite unnecessarily, in fatal proximity to the conductors: and it was the likelihood of the deceased's conduct which would have been in contemplation. It was not a case where the deceased was a member of a class or group of people whose likely conduct might attract a specific duty. In my opinion, the Council employee could not be held to be obliged to replace or reseal the cover of the links box. Further, the Council employee could not be required to inform the deceased of the nature of the links or to warn him of the risks of coming into close proximity to them. In my opinion, the evidence did not permit of the conclusion that the Council employee ought to have taken any step in relation to the exposed conductor, the absence of which was causally related to the death of the deceased. In my opinion, the trial judge ought to have directed the jury to return a verdict for the defendants and the Court of Appeal Division ought to have allowed the appellant's appeal against the jury's verdict.

[17]

The circumstances of the case are described in the judgment delivered by Reynolds J.A. in the Court of Appeal. In short the circumstances are as follows. The deceased was an electrician and a member of a firm of electrical contractors. He was not a licensed electrician, but a member of the firm was. The firm was engaged by a tenant of the premises to provide a panel furnished as a switchboard to be put in a switchroom in the basement of Yorkshire House. The licensed electrician brought the panel to the premises and screwed it temporarily in place. A short time afterwards, the deceased, who was working for his firm, came to the switchroom to make the panel ready for installation. But this could not be done without the approval of the Council. The further work required to be done on the panel necessitated that the deceased should unscrew it from its place. He did this and left it hanging, resting on the Council's meters which were below the switchboard. The Council's electrical links were in a box directly above the switchboard. The links were live conductors and the box had a cover fastened with screws, which prevented the links being exposed. On the day of the accident Mr. Briody, who was the Council's installation inspector, came to the switchroom, accompanied by Robert Fletcher, an apprentice and an employee of the Council, for the purpose, amongst others, of removing some of the meters. The panel was resting on these meters and suspended by wires attached to the back of the panel. Mr. Briody stood on a chair, that was alongside the switchboard, to gain easy access to the links box, in order to take the cover off so that he might inspect the connexions of the links with the meters. It is not clear from the evidence what he did with the cover. Presumably he left it on the floor of the room, but the evidence is silent as to what he did with the screws. Mr. Briody told the deceased that it would be necessary for him to remove the panel from the meters to allow of their removal. The switchboard itself was no concern of Mr. Briody. It was necessary for Mr. Briody to go elsewhere in the premises and before leaving the switchroom he asked the deceased to remove the panel from the meters. Mr. Briody asked the apprentice to stay in the room while he was away. Mr. Briody did not replace the cover on the links box before he left. His Honour the trial judge addressed a question to Mr. Briody regarding the cover which the witness had removed from the links box. The question was: "How long would it take you to slip that back?" Mr. Briody's answer was: "Five or ten seconds, I suppose." What occurred when Mr. Briody left the room was told by the apprentice in giving evidence. He was called as a witness on behalf of the plaintiff. The judgment of Reynolds J.A. contains an account of how the accident happened based upon evidence which the apprentice gave. His Honour's description of it is as follows: the deceased "in complying with Briody's request, did not take the course of screwing the board back into its normal position but decided to suspend it by wire. To do this, he stood on the chair, requesting the apprentice Fletcher to hold the board. He first suspended the board on the left-hand side by affixing the wire to the switchboard and tying it to some metal pipes on the wall. He then proceeded, standing on the same chair, to tie the right-hand side of the switchboard, presumably to some pipes, on the right-hand side. Whilst standing on the chair his face would be at approximately the same height as the live links. Whether he lost balance or whether he inadvertently leaned too far, is not known, but in some way whilst carrying out this task, his left cheek came into contact with an exposed live link at a time when his right hand was on a pipe. This caused current to flow through his body and resulted in his death." It appears from the evidence that Mr. Briody returned to the room immediately after the deceased sustained the electric shock, and made a report of the accident based on what the apprentice told him and what he himself observed. This report is an exhibit in the case and is as follows:

[23]

Reynolds J.A. observed in the judgment he delivered in the Court of Appeal: "There was no demurrer to the declaration. Issue was joined so that, under the common law system of pleading, the existence of a duty, the breach of which was complained of, was conceded. Therefore the real questions for consideration by the tribunal of fact were whether the facts alleged to give rise to the duty were established, and whether a breach had been established causally related to the death. It was for his Honour to direct the jury as to the nature of the duty to which the relationship of the defendants to the deceased gave rise. The substantial submission made to this Court (by the appellants) on the issue of liability is that his Honour erred in law in directing the jury as to the nature and content of this duty. It is conceded (quite apart from the joinder of issue), as I understand the appellants' argument, that some duty arose, but a duty different from a duty to take reasonable care in all the circumstances." Counsel for the defendants submitted to the trial judge that he should direct the jury that the defendants had a duty to take reasonable care to protect the deceased from the danger caused by the neglect of Briody to replace the cover over the electrical links, only if certain conditions were satisfied. These were: "(1) There must be a dangerous condition created on the premises by the defendants; (2) The dangerous condition must be in the nature of a concealed trap or unusual danger to a person of the class of the deceased or type of the deceased; that is an electrician; (3) The deceased was unaware of the danger; (4) The defendants knew or ought to have known that the deceased was unaware of the danger; and (5) That the defendants knew or ought to have known that the deceased was likely to go into close proximity to the danger." The trial judge did not accept the submission. He said that it was a "Donoghue v. Stevenson Case" (Donoghue v. Stevenson [1] ) and that "the principles, not the facts are to be elicited in Thompson's Case [2] ". The case referred to is Thompson v. Bankstown Corporation [3] . The passage is as follows: "It is the case of an injury through discharge of electricity made possible through the defendant's neglect of due precautions and allowing his system to be in an improper and dangerous condition. That is the basis of the defendant's liability. The true question, as we think, is whether the plaintiff acting as he did falls within the scope of the defendant's duty of care." Early in the judgment in Thompson's Case [4] it is said that the general law of negligence imposes upon those controlling "an extremely dangerous agency, such as electricity of a lethal voltage", the duty of exercising a high standard of care. It is also said in the case [5] , "The generation, or receipt, and transmission of electrical energy of a lethal voltage imposed the duty upon the defendant". The ground for imputing fault to the defendant Council in the present case existed in Briody's neglect to replace the cover on the links, such neglect having occurred in the course of performance of his duties in the capacity of the Council's installation inspector. The ground of imputing fault to Briody was that a duty of care, measured by a high degree, rested upon him to prevent injury through discharge of electricity.

[106]

There appears in this case a misconception of the question which falls to be determined by a jury where there is evidence of negligence to go to the jury. The question for the jury is not primarily whether there is a reasonably foreseeable risk of injury with a consequence that if there is such a risk then a defendant owes a duty to take reasonable care to remove or to diminish it. When a duty of care to a particular person in particular circumstances is found to exist then the performance of that duty requires that a defendant does not do any act or omit to do any act which a reasonable man would not do or would do whereby injury is likely to be caused to the particular plaintiff in his particular circumstances. The particular expression of the duty by relating it to the person and the circumstances in no way involves the translation into the enunciation of the duty of care of the acts and omissions which may in the particular case be found to be breaches of the duty. It is always a question of fact and never a question of law whether a particular act or omission is a breach of the duty of care. It is always a question of fact whether the act or omission was one which a reasonable man would not or would omit to do. It is inevitable that a tribunal of fact which seeks to answer this question will bear in mind whether the act or omission is or is not foreseeably likely to cause injury, but that inquiry remains subordinate to the general inquiry whether the act or omission shows a lack of that reasonable care which the relevant duty of care imposes. Further, it is a different inquiry on foreseeability from that undertaken by the Court in the course of determining whether any and, if so, what duty of care should be held as a matter of law to exist in that situation. It is foreseeability in the last-mentioned sense to which Lord Atkin was referring in his famous words in Donoghue v. Stevenson [18] . He was formulating a general principle which may be usefully applied in determining whether in a novel situation a duty of care should be found in law to exist. He did not say that in all situations where there was a reasonable foreseeability of injury a duty of care arose nor suggest that such foreseeability, in the context which he was considering, was a question of fact in each case. Indeed, it is useful to bear in mind that the duty of care enunciated in Donoghue v. Stevenson [19] was no general duty of care in the abstract but a duty related to the particular circumstances of the plaintiff. The duty of care of a manufacturer to a consumer in respect of defects in goods was limited to those cases where there was no opportunity of intermediate inspection. Cases such as Daley v. Gypsy Caravan Co. Pty. Ltd. [20] , referred to by Reynolds J.A. in his judgment in the appeal court, can only be properly understood if the difference between the matters which go to the existence of the duty of care and the matters which provide evidence of the breach of that duty is clearly comprehended.