Electrocution on Appeal Produces Questionable Split Decision by TurksLegal

Electrocution on Appeal Produces Questionable Split Decision By Roger Walter | June 2011 Area of Expertise | General Insurance

Summary On 15 March 2011 the NSW Court of Appeal handed down its decision in Stephens v Giovenco; Dick v Giovenco [2011] NSWCA 53. The case involved difficult decisions about the duties of care owed by a landlord and his plumber in respect of the state of a partly decommissioned solar hot water system that caused the death by electrocution of a handyman retained by the landlord to fix a leaky roof and, if necessary, to remove the system.

Introduction In 2001 the plumber, Mr Stephens, installed a new gas hot water system and disconnected the water supply from the redundant solar hot water system (‘the solar system’). He did not, however, advise the landlord, Mr Dick, to disconnect the power to the solar system. Mr Stephens and Mr Dick were the defendants to a claim under s4 of the Compensation to Relatives Act 1897 brought by the widow (Ms Giovenco) of the handyman (Mr Harley) in respect of his death. The trial judge, Levy SC DCJ, held in favour of the widow and awarded damages against both defendants, without any deduction for contributory negligence. The Court of Appeal found several errors of fact and law in his Honour’s decision and, in a split decision, determined certain facts and that the plumber, Mr Stephens, was not relevantly negligent. The landlord, Mr Dick, was found liable, but with a deduction of 80% for the deceased’s contributory negligence. Mr Harley’s electrocution occurred on 23 October 2004. The findings on appeal centred upon the significance and effect of his knowledge and that of Mr Dick by early September 2004, which was when Mr Harley first inspected the roof to investigate the leaking. The critical piece of knowledge in early September 2004 was that the solar system was hazardous in that it appeared to have a live electrical connection. The Court of Appeal held that Mr Harley had, while conducting his initial inspection of the roof in early September 2004, identified this hazard and alerted Mr Dick that he should have an electrician attend to disconnect the power before Mr Harley returned at a later date to work on removing the solar system, should that be required to fix the leaking roof. The evidence did not permit a finding that Mr Harley had by the date of the accident, 23 October 2004, assumed that the electricity had been disconnected from the solar system. Mr Harley was working alone that day and the limited evidence did not permit detailed findings about how he applied his knowledge of the live electrical connection, whether he attempted to turn the power off at the meter board, or the events that led to him working on or near the solar system. There was evidence that one end of the solar system’s vessel collapsed while he was on the roof and that he went home and changed before returning to the job. The Court of Appeal held 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’1. The Court of Appeal found that Mr Harley’s conduct involved a failure to take reasonable care, but that it did not amount to recklessness.

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Electrocution on Appeal Produces Questionable Split Decision by Roger Walter

It was also recognised on appeal that it was an agreed fact at trial that shortly before he was electrocuted, Mr Harley removed the cover over the solar system’s electrical wiring. Another key finding of fact on appeal was that Mr Dick would have had the electricity disconnected in 2001, if so advised.

Duty of Care Owed by Plumber (Stephens) The complexity to be recognised in this case from the outset is that the obligation on Mr Stephens to inform the landlord was, from Mr Stephens’ perspective, the first of the two steps required to remove the risk of electrocution; the second step was the independent action of the landlord, which was actually having an electrician disconnect the power. So it was clear enough that the duty of care owed by Mr Stephens was one requiring him to inform Mr Dick about the need to have the power disconnected from the solar system. Those sitting on the Court of Appeal agreed on this and that the duty was breached, but they did not agree in relation to identifying the class of persons to whom this duty was owed and they did not agree on causation in respect of the breach. On these points, President Allsop and Tobias JA constituted the majority, and in my respectful view their decision on both points is likely to be identified as wrong in future decisions. The High Court will not intervene in this case, as there has been no appeal, but in my view the precedent set by the majority’s decision on these points should, at least until it is reconsidered, be treated with caution and distinguished wherever possible, rather than followed. The fundamental difficulty I have with the majority view is that it arose from the President’s approach of allowing the nature of the plumber’s duty, which was one ‘to inform the owner of the appropriateness, for reasons of safety, to have the power disconnected’, to frame and confine the nature of the risk to be foreseen as one simply involving, and only involving, the absence of knowledge of the live electrical connection. Rather than giving due regard to the nature and gravity of the hazard that was set in play by Mr Stephens, the majority focused on what Mr Stephens’ duty required of him and that Mr Harley knew of the live connection. The majority held that the duty owed by Mr Stephens was not owed to Mr Harley because Mr Harley fell outside of the class of persons to whom the duty was owed. This conclusion was warranted according to the majority because ‘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 … if reasonable steps to advise the owner appropriately were not taken’2. The President held that in leaving the solar system in its partly decommissioned state and not informing Mr Dick that he should arrange for an electrician to disconnect the electricity, Mr Stephens created the risk 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’3 (my emphasis). Of course, the evidence established that Mr Harley made no such assumption, so he fell outside the relevant class of persons. Having unnecessarily confined the description of the risk to one based on knowledge of the live connection, the President explained: 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.

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Electrocution on Appeal Produces Questionable Split Decision by Roger Walter

This emphasis on Mr Harley’s knowledge of the live connection is unjustified when the risk was not simply the fact of the existence of the live connection not being apparent to someone on the roof. In my respectful view, the risk, properly conceived and stated, was that someone not aware of the live connection or someone who was aware of it, but who was not cognisant of the extent of the danger associated with it or the limitations on their own safety and competency, would work on or near the solar system. The President summed up the rationale for his approach of allowing the nature of the duty to frame the risk the duty was directed to in the following passage: 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 is to be contrasted with the approach taken by Hodgson JA, who constituted the minority on this point. In my respectful view, the minority decision of Hodgson JA on this point is to be preferred. Hodgson JA explained: 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.4 And at paragraph 90, Hodgson JA continued: 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. And finally, at paragraph 93, in expressing his disagreement with the approach taken by the President, and before citing passages from the High Court authorities of Nagle v Rottnest Island Authority [1933] HCA 76 and Bus v Sydney County Council [1989] HCA 29 in support of his position, Hodgson JA said: … 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 form 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. The majority, President Allsop and Tobias JA, also held that even if they were wrong in their ruling that the duty owed by Mr Stephens (the duty to inform Mr Dick) was not owed to Mr Harley, it was (with reference to the causation provision in s5D(1)(b) of the Civil Liability Act 2002) ‘not appropriate for the scope of Mr Stephens’ liability to extend to the harm caused to Mr Harley’, given that the duty was one to inform and that Mr Harley acted freely, voluntarily and with full knowledge of the risk of the live connection. Tobias JA added that a further factor supporting a finding against the plaintiff on causation was that the most immediate temporal cause

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Electrocution on Appeal Produces Questionable Split Decision by Roger Walter

of the electrocution was Mr Dick’s conduct in failing to act to isolate the unit from the power supply (after learning of the power connection from Mr Harley in early September 2004, six weeks before the electrocution). Again, in my view, the majority decision on causation should be treated with caution. In particular, the discussion by the President about whether the actions of Mr Harley were free, voluntary and informed seems not to deal adequately with the evidence and the concept developed at common law of causation being severed by the intervening act of a plaintiff or third party, as identified in the High Court by McHugh J in Nominal Defendant v Gardikiotis [1996] HCA 53. In my view, on the facts, which did not permit a finding that Mr Harley accepted electrocution as a foreseen consequence, the preferred approach to causation is that outlined in the judgment of Hodgson JA, who said at paragraph 115 that ‘there was not in this case a “free informed and voluntary act” of the kind referred to by McHugh Jin Gardikiotis’.

Duty of Care Owed by Owner (Dick) Upon being contacted by Mr Harley, Mr Dick had some six weeks to arrange for an electrician to disconnect the electricity and it was solely within his power to act on the information that there was a live electrical connection. President Allsop, in a minority decision on this point, applied the same foreseeability reasoning (but this time to the question of breach rather than to the question of duty) to decide against the plaintiff in respect of Mr Dick’s duty of care. Critical to his decision in this regard was that it was Mr Harley who had declined to proceed with working on the roof in September because of the presence of a live electrical connection. His Honour reasoned that it was not reasonable in those circumstances for Mr Dick to envisage that Mr Harley would turn up at the house one day to work on the leaky roof. The majority decision on this point was that Mr Dick owed a duty of care to Mr Harley and that he was in breach of it – per Hodgson JA and Tobias JA. Tobias JA added that the ‘whole purpose of Mr Harley communicating to Mr Dick’5 in September 2004 that an electrician would be required to isolate the redundant hot water system from the power supply was that Mr Dick would take steps in that regard before Mr Harley returned to the premises to work on the roof.

Implications This case was a difficult one in many respects. The success of the widow against the property owner, but not the plumber, was based on reasoning that was, in my respectful view, flawed in some respects and dependent upon some fine distinctions about duty of care, reasonable foreseeability and causation. For the reasons outlined above, the decision that the plumber was not liable should be treated with caution. The case turned on its facts to a degree, but certain aspects of it might be applied to bring about erroneous outcomes in cases in which the loss or injury is caused by negligent conduct that occurs and manifests itself outside traditional relationships like occupier and entrant.

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Electrocution on Appeal Produces Questionable Split Decision by Roger Walter

End notes

1 Hodgson JA at paragraph 87 â&#x20AC;&#x201C; and see Tobias JA at paragraph 145. 2 President Allsop at paragraph 4. 3 President Allsop at paragraph 4. 4 At paragragh 89. 5

At paragraph 142.

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Partner T: 02 8257 5736 roger.walter@turkslegal.com.au

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