ACQ v Cook; Aircair Moree v Cook; Cook v Country Energy; Country Energy v Cook

BEAZLEY JA : I agree with Campbell JA.

GILES JA : I agree with Campbell JA.

CAMPBELL JA : Nature of the Case

This is a combined hearing of four appeals relating to verdicts and orders made by his Honour Judge Peter Johnstone in the District Court on 14 May 2007. Because different parties play different roles in these various appeals, I will refer to the parties by name rather than by their role in the proceedings. The Decision Below

The plaintiff in the court below, Mr Gregory Cook, was a linesman employed by NorthPower. Country Energy was formerly known as NorthPower, and I will refer to it by its former name. On 28 December 2000 Mr Cook was very seriously injured through receiving an electric shock from a power line.

ACQ Pty Limited (“ ACQ ”) owned a particular light aircraft. That aircraft was operated by Aircair Moree Pty Ltd (“ Aircair ”).

In the very early morning of 28 December 2000 that aircraft was being used to carry out aerial spraying of a cotton field. The cotton field had a power line passing over it. At its lowest point the line was about 6.2m above the ground. The pilot of the aircraft, a Mr Stubbs, was an employee of Aircair. He carried out the spraying by flying underneath this power line.

On the tenth spraying run of the day the aircraft was flown underneath the line, but at a height insufficient to avoid colliding with it. The collision sheared off the top 150mm of the tailfin of the aircraft, and caused the line to be dislodged from one of its supporting poles. That in turn caused the line to drop. The trial judge found: “It remained suspended, swinging over the field, but at a height that at the point of Mr Cook’s accident was then only 1.5m above the ground, at about throat level.”

NorthPower was notified of the incident. It sent Mr Cook and another linesman, Mr Buddee, to deal with the situation. They decided to isolate the line by de-energising it from the nearest links site, which was some 7kms further up the line. Mr Buddee drove towards the links site. Mr Cook then approached the line with a view to assessing what damage had been occasioned to the line and the supporting pole, to determine what repair work might be required. Some minutes later he received an electric shock from the line. The trial judge found: “I am satisfied that Mr Cook never actually came into contact with the conductor as the evidence is that if he had done so, that would probably have resulted in his death. More probably than not, what occurred was a phenomenon known as ‘flashover’, whereby electricity passed across a charged ionised field, or corona effect, around the live conductor. Some part of Mr Cook’s body must have penetrated this ionised electric field resulting in electricity crossing the air gap to his body, and then to the ground. Such a flashover had an increased propensity to occur in conditions of humidity such as prevailed at this site, where the cotton crop and surrounding grain grasses were saturated. Mr Cook had travelled across the muddy field over wet cotton bushes to reach the point where he was injured.”

The trial judge found that Mr Cook’s injuries were caused by negligence on the part of NorthPower, and also by negligence on the part of Mr Stubbs. Mr Stubbs was not sued, but Aircair was sued on the basis that it was vicariously liable for his negligence.

Mr Cook also sued Aircair and ACQ on a statutory cause of action arising under the Damage by Aircraft Act 1999 (Cth) (“ DAA ”). It provides: “ 10 Liability for injury, loss etc. (1) This section applies if a person or property on, in or under land or water suffers personal injury, loss of life, material loss, damage or destruction caused by: (a) an impact with an aircraft that is in flight, or that was in flight immediately before the impact happened; or (b) an impact with part of an aircraft that was damaged or destroyed while in flight; or (c) an impact with a person, animal or thing that dropped or fell from an aircraft in flight; or (d) something that is a result of an impact of a kind mentioned in paragraph (a), (b) or (c). (2) If this section applies, the following people are jointly and severally liable in respect of the injury, loss, damage or destruction: (a) the operator of the aircraft immediately before the impact happened; (b) the owner of the aircraft immediately before the impact happened; … 11 Recovery of damages without proof of intention, negligence etc. Damages in respect of an injury, loss, damage or destruction of the kind to which section 10 applies are recoverable in an action in a court of competent jurisdiction in Australian territory against all or any of the persons who are jointly and severally liable under that section in respect of the injury, loss, damage or destruction without proof of intention, negligence or other cause of action, as if the injury, loss, damage or destruction had been caused by the willful act, negligence or default of the defendant or defendants.”

The trial judge held that the circumstances in which Mr Cook was injured fell within the ambit of section 10 DAA and that both ACQ and Aircair were liable to pay damages to Mr Cook pursuant to section 11 DAA .

ACQ and Aircair raised a defence of voluntary assumption of risk. The trial judge rejected that defence, on the facts. There was thus no need for the judge to decide whether voluntary assumption of risk was available, as a matter of law, as a defence to an action for damages under section 11 DAA .

The trial judge held that a defence of contributory negligence was not available to Aircair and ACQ concerning their liability under DAA . In that circumstance, he evidently took the view that there was no point in assessing the extent to which the damages that Mr Cook could recover from Aircair for negligence would be reduced on account of Mr Cook’s contributory negligence, as the judge did not make any such assessment.

The trial judge held that, as between Mr Cook and NorthPower, Mr Cook had engaged in contributory negligence, such that the damages Mr Cook could recover from NorthPower should be reduced by 40%.

Aircair and ACQ each sought indemnity or contribution from NorthPower under section 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 (the “ 1946 Act ”). NorthPower also sought contribution, on that basis, from Aircair and ACQ. The trial judge held that contribution under the 1946 Act was recoverable only by one tortfeasor against another tortfeasor, that the liability of Aircair and ACQ under the DAA was not a liability as a tortfeasor, and hence Aircair and ACQ could not recover contribution from NorthPower towards their liability to pay damages under the DAA . However, because Aircair was a tortfeasor who had caused Mr Cook’s damage, NorthPower could recover contribution from it. The trial judge evidently took this view even though Aircair’s liability as a tortfeasor was not the liability in relation to which the judge entered a verdict against Aircair. The judge assessed the amount of that contribution at 50%.

The damages recoverable against NorthPower were assessed in accordance with section 151G Workers Compensation Act 1987 at $433,860.00. That sum was to be reduced by 40% for contributory negligence.

Damages against Aircair and ACQ were assessed in accordance with the Civil Liability Act 2002 (NSW) rather than in accordance with the common law. On that basis of assessment the trial judge arrived at a figure of $953,141.

The trial judge delivered reasons for judgment on 20 April 2007, in which he expressed his conclusions and gave his reasons concerning all the topics I have mentioned so far. However, he did not enter verdicts on that occasion. This was because he recognised the possibility that adjustments may need to be made to the assessments of damages by reason of section 151Z Workers Compensation Act . He therefore said: “Given the findings I have made, it is in my view appropriate that the parties be given the opportunity to either reach agreement on the adjustments, and the verdicts to be entered as a consequence, or to make further submissions as to the proper application of the section.”

At a further hearing on 9 May 2007 counsel for ACQ and Aircair sought to re-open the question of whether ACQ and Aircair could recover contribution from NorthPower. Counsel sought to argue that contribution was available, by referring to some additional authorities relating to section 5(1)(c) 1946 Act , and also sought contribution pursuant to the general law independently of statute. The judge was not persuaded that the additional authorities made any difference. The cross-claim that ACQ and Aircair brought against NorthPower seeking contribution specifically sought contribution on the basis of the 1946 Act , and said nothing about seeking contribution under the general law. The possibility of there being contribution under the general law had not been mentioned at the earlier hearing. The trial judge declined to permit the case to be re-opened to explore contribution under the general law.

The trial judge held that, because neither ACQ nor Aircair had a right of contribution from NorthPower, there was no scope for the damages that Mr Cook could recover from ACQ and Aircair being reduced pursuant to section 151Z(2)(c) Workers Compensation Act .

Thus, the trial judge entered verdicts as follows: · “For the plaintiff against Aircair Moree Pty Limited and ACQ Pty Limited for $953,141.00. · For the plaintiff against Country Energy for $260,316.00. · For Country Energy on its cross-claim against Aircair Moree Pty Limited for $130,158.00. · For ACQ Pty Limited on the cross-claim brought by Country Energy. · For Country Energy on the cross-claim brought by Aircair Moree Pty Limited. · For Country Energy on the cross-claim brought by ACQ Pty Limited.” Issues on the Appeal

On this appeal no party disputes the figures arrived at by the trial judge in assessing, using the two statutory regimes for calculation of damages contained in the Workers Compensation Act and the Civil Liability Act , the damages sustained by Mr Cook. The issues that were argued in the appeal relate to: (i) Whether Aircair owed a duty of care to Mr Cook, and breached it. (ii) Whether the construction of sections 10 and 11 DAA is such that, on the facts of this case, they gave a cause of action to Mr Cook against ACQ and Aircair. (iii) Whether the judge was right in finding that Mr Cook’s injuries were caused by a breach of duty of Mr Stubbs, or by “something” that falls within section 10(1)(d) DAA . (iv) Whether contributory negligence is available as a defence to any action brought pursuant to DAA . (v) Closely related to the causation issue, whether the trial judge should have found that contributory negligence was a complete defence for both ACQ and Aircair pursuant to section 5S Civil Liability Act 2002 , or that Mr Cook had voluntarily assumed the risk of his injury. (vi) If contributory negligence is available as a defence to an action under DAA , but is not a complete defence, what assessment of contributory negligence should be made. (vii) Various related issues concerning whether ACQ and Aircair are entitled to contribution from NorthPower, including: (a) whether contribution is recoverable under the 1946 Act by ACQ from NorthPower, in circumstances where ACQ is not a tortfeasor liable for the same damage; (b) whether contribution is recoverable under the 1946 Act by Aircair from NorthPower, in circumstances where Aircair has been held to be a tortfeasor liable for the same damage, although the verdict entered against it is based on its liability under DAA rather than its liability as a tortfeasor; (c) if contribution is recoverable under the 1946 Act by ACQ or Aircair from NorthPower, what contribution should be ordered; (d) whether the trial judge should have permitted, or this Court should now permit, argument to be raised about whether contribution is available under the general law to a person who has a liability under DAA , from a tortfeasor whose negligence has caused the same damage; (e) if such argument ought have been permitted, or is now permitted, what, if any, contribution is each of ACQ and Aircair entitled to recover under the general law from NorthPower. (viii) Whether the trial judge was right in holding that NorthPower was entitled to recover contribution under the 1946 Act from Aircair, notwithstanding that he held that Aircair was not entitled to recover contribution under the 1946 Act from NorthPower. (ix) Whether the trial judge was right in holding that section 151Z Workers Compensation Act did not operate to reduce the damages payable by either ACQ or Aircair. (x) Whether the judge was right in assessing the liability of both ACQ and Aircair to give contribution to NorthPower at 50%. ACQ and Aircair assert that they should bear less than 50%, while NorthPower contends that Aircair should bear considerably more than 50%. (xi) Whether the trial judge correctly found that NorthPower had breached its duty of care to Mr Cook. (xii) What assessment should have been made of the contributory negligence attributed to Mr Cook concerning his claim against NorthPower? Mr Cook contends he should not have been found guilty of contributory negligence at all, or if he is guilty of contributory negligence that the proportion should have been considerably less than 40%. NorthPower contends that the proportion should have been considerably greater than 40%. Circumstances of the Accident

The cotton field that was being sprayed is field 19 at a rural property called “Milo” . That property is reached by travelling 20.8kms north of Moree on the Newell Highway, then 7kms west from the Newell Highway. Field 19 is crossed by an access road that runs in a north-south direction. The field was planted with cotton plants that were planted in rows 1 metre apart, with those rows running in a north-south direction. The cotton bushes were knee-high or more – some evidence put them as being 600mm tall, other evidence put them as being 750mm tall, and there is no basis for choosing between those figures. Individual bushes in a row were planted so that they grew into each other, giving any row the appearance of a low hedge. The rows had irrigation ditches between them. These are troughs or depressions in which water collects when the field is irrigated. The ground in profile had a crest and trough configuration, akin to corrugations spaced one metre apart.

The power line that traversed the field was a 22,000-volt line. It consisted of two separate conductors running parallel to each other. Those conductors were connected to insulators on the crossbeams of poles located in the field. One of those poles was located immediately adjacent to the access road, others were in the field. The line ran diagonally across the field from the northwest corner in a southeast direction. It ran at an angle of about 60º to the line of the rows of cotton bushes.

Mr Stubbs took off at 5:10am on 28 December 2000 from an airstrip about five miles from Milo for the purpose of conducting the spraying operations. Mr Stubbs did not give evidence at the trial, but some statements he made in a Bureau of Air Safety investigation and a WorkCover investigation were in evidence. His account was: “On approaching the property of Milo I contacted irrigators to confirm spraying of field 19 which I am familiar with and its wire hazard. I commenced spray operations on which I came into contact with the overhead wire on about the tenth run. I then immediately contacted my operations manager concerning the incident and proceeded to Moree airport landing without further incident.”

In carrying out the spraying, Mr Stubbs was assisted by a “spotter” , Mr Matt James. Mr Stubbs described the spotter’s job as to: “Keep an eye on weather conditions, put out ground markers to identify shape of the field and for any other information I require concerning ground activities.” Mr Stubbs and the spotter could communicate by UHF radio. The spotter did not notify him that he was flying close to the power lines.

Aircair has stated that the wind speed at Milo at 5:30am was 13kms per hour. That wind was blowing roughly at right angles to the direction in which the power line ran.

The aircraft’s tailfin came into contact with the wire at about 5:30am. That timing is consistent with some automatic tripping devices having been activated in the line at 5:32am, but then resetting themselves.

A WorkCover inspector who investigated the accident, Mr Gary Mason, gave evidence that around 5:30am on the day of the impact “it would have been pretty dark because of daylight saving” . Apart from meteorological evidence that the sun rose at 6:01am that day, that was the only evidence about the light conditions at the time of the impact.

The contact occurred between the pole closest to the road, and the next pole west. One of the conductors was torn from its insulator on the cross arm of the pole closest to the road, breaking the end of the cross arm in doing so. Because it had been elevated by that pole, the conductor then hung low to the ground, but above the cotton growing under it. The other wire was torn from its insulator on the pole nearest the road, but came to rest on the cross bar of that pole, so did not drop.

Mr Greg Cartwright was a farm worker at Milo. He was in field 19 at this time, and heard the noise as the plane clipped the line. Mr Cartwright did not give evidence, but parts of a statement that he gave to Mr Mason were established through cross-examination.

Mr Cartwright’s account was: “The Aircair Marker then told me that the plane had hit the powerline. I then went down and inspected what happened. The line was swinging across the field. I then rang up Don McKay to tell him what had happened. I then stayed with the line while Don McKay contacted NorthPower.”

Mr Don Mackay worked as a supervisor at Milo. Mr Mackay had died by the time of the trial, but a statement that he made on 15 January 2001 in the WorkCover inquiry was in evidence. Mr Mackay said that Mr Cartwright “… told me that an airplane had hit the power line on field 19 and the line was down. I rang NorthPower about 6:20 am and informed them that the power line was down.”

A NorthPower report into Mr Cook’s injury puts the time that the call was received reporting that the line had been struck as being 6:04am. That account of the time is likely to be more accurate than Mr Mackay’s recollection.

The closest the evidence comes to a contemporaneous record of the terms of Mr Mackay’s telephone report appears in a facsimile that NorthPower sent to WorkCover on the day of the accident. It describes it as a “report of a wire brought down by an aircraft on a rural property 21.5kms north of Moree …” .

Some relevant parts of the operations of NorthPower around Moree were controlled from Port Macquarie. A NorthPower investigation report records: “At 6.17 am, Greg Cook was called out by Port Macquarie Dispatch with Ray Buddee being called at 6.18 am. Both employees proceeded separately to the accident site near the house on the property “Milo”.” At the time of receiving the call each man was at his home in Moree.

Mr Buddee arrived at the property at about 6:45am, and parked his vehicle near the pole from which the wire had been torn. Mr Cook arrived shortly after. The day was fine, but there was almost complete cloud cover.

Mr Buddee’s statement, made on the day of the accident, about what happened before Mr Cook arrived was: “Aircair arrived at site on other side of line and came over to me ducking under line, I told him I needed a Do and Charge signed before any work would commence. He went back to his truck and radioed in and I came over to him ducking under the line and we filled out the paperwork.” The “paperwork” there referred to was documentation whereby Aircair agreed to pay NorthPower for the repairs to the line. Clearly Mr Buddee’s assessment was that the situation he found was not one calling for immediate action to save life or property.

After Mr Cook arrived he or Mr Buddee “talked to Milo person that was there” . This person was Mr Cartwright. Mr Cartwright told Mr Buddee and Mr Cook that there may be some possible damage to the pole in the field, and that he had irrigated the section of the field that the lines were swinging over, so that it was wet. He described that portion of the field to Mr Cook as “sloppy” .

Another document in evidence records: “Mr Cartwright suggested to Mr Buddee and Mr Cook that they use an aircraft to inspect the overhead distribution line and the power pole because of the muddy state of the field over which the overhead distribution line passed and in which the power pole was located.”

Mr Buddee and Mr Cook discussed what should be done. They decided between them that Mr Buddee would drive to the links site, 7kms up the line, and isolate the line. They agreed that Mr Cook would “walk the line” , to assess what damage had been occasioned to the conductor and the supporting pole, and thus to determine what repair work might be required. They set out on their respective tasks. Mr Cook entered the cotton field, walking towards the place where the plane had run into the line.

At this time Mr Mackay arrived on the scene. He saw one NorthPower vehicle driving away and the other parked near the power pole. Mr Mackay’s statement continued: “As I was driving on the road north of Field 19, I seen a NorthPower worker walking in the field. He appeared to have lost his balance, one arm went up I don’t know which one, then there was a flash and bang a loud bang. With that he fell forward onto his face. I then turned and headed for the NorthPower Ute parked at the power pole. I then called the other NorthPower vehicle and told him that his partner was down. I ran across the field keeping away from the downed line. The injured worker was lying face down in mud.”

Mr Cook was unable to give any account of how the accident happened, as he has no memory of the day of the accident, or the two days before it.

Mr Buddee’s account is that as he was driving toward the links he: “Got a radio call from someone saying NorthPower man get back here your man’s gone down. I turned around and got back there. When I got there I found a man out in the field who told me that Greg had touched the line and was lying face down in the mud. I radioed PanPan to Port Control and told them to turn off supply, and told another person to stay by the truck and let us know when it was off.” That “other person” was Mr Cartwright.

Mr Cartwright’s account of events after Mr Buddee had driven off towards the links was: “I then asked Cookie if he was right because it was the end of my shift. I then drove around to the shed. When I was back at the shed getting ready to leave Don called me on the two-way to get back because there was a man down. When I got back to the field Don was out with Cookie telling me, ‘We have got to do something’. At that stage the other NorthPower worker turned up and said, ‘The power is still on.’ He told me to stand by the radio while he went in to help Don and to confirm to them when the power had been turned off.”

Mr Buddee ran to where Mr Cook was lying in the field, cleaned his mouth and face of mud, found that there was no breathing or pulse, and gave him cardiopulmonary resuscitation until pulse and breathing were restored. In the course of this an ambulance and senior people from NorthPower were summoned by mobile phone. The place where Mr Cook fell was approximately 65m from the place his truck was parked.

A NorthPower internal report on the accident, dated 27 February 2001, gives a somewhat fuller account of Mr Buddee’s version of the conversation between himself and Mr Cook: Ø “They were aware the cotton field was very wet and “walking the line” would be hard going. Ø They understood the line was alive. Ø The low wire did not appear to be blown out sideways or moving about. Ø They realised one of them should stay in the vicinity in case a farm worker approached. Ø They needed to find out exactly where the wire had been contacted by the plane, the extent of that damage to the wires and the next pole so they could plan and carry out the repair work safely. Ø They decided that Ray Buddee would travel to the nearest set of pole mounted isolating links No 1292 located about 7 km back towards Moree in order to isolate supply from the faulty section and Greg Cook would start to “walk the line” to visually check for physical damage to the conductors and to adjacent pole No 82 120101115. Ø Ray Buddee drove off to do the switching and Greg Cook entered the cotton field to inspect the line.”

NorthPower described the situation the men encountered as: “Both conductors probably damaged and with the potential to break completely and drop or recoil or have a strand break, unravel and stick out some distance. Mild cross breeze able to move the 567 m span no more than 0.5 metres to one side but also back and forth if some variation in wind speed was occurring.”

The NorthPower internal report also attributes to Mr Mackay the observation that Mr Cook: “… was having considerable difficulty walking in the recently irrigated cotton field. Watching Cook proceed he noted that he got into what must have been a particularly boggy patch and was having great trouble removing his feet from the mud. At this stage Cook appeared to overbalance and throw his arms up in the air and Mackay stated that he saw a flash and Cook immediately fell out of sight, screened by the 750 mm high cotton bushes.” I infer that this records what Mr Mackay told the NorthPower investigator.

The NorthPower internal report states that when Mr Buddee returned to the site he: “… quickly made a Pan Pan Pan call to Port Macquarie System Control for immediate isolation of the entire Gingham Road Feeder. Mackay had already called for an ambulance. The Pan Pan Pan call was received at 6.56 am and the feeder was isolated from supply at 6.57 am by Port Macquarie System Control. By this time another farm worker had arrived and Buddee asked him to get more help. Mackay was with Cook at the accident site when Buddee arrived back. Buddee made his way across the rows of cotton as quickly as he could towards Mackay and Cook. Mackay noticed Buddee getting close to the low wire as he approached and warned him to move away from it. Cook was face down in the mud when Buddee reached him. He was lying about one metre to the side of the low hanging wire.” Condition of the Field

The field was being irrigated just before Mr Stubbs started spraying. Photographs of the field taken later on the day of the accident show that even at that time water was still lying in the irrigation ditches between the rows.

While the field across which Mr Cook walked has been described as “muddy” and “boggy” those words do not adequately convey its state.

The NorthPower investigation report records that: “Ambulance staff attended Cook at the accident site despite being hampered by 100-150 mm deep mud.”

Mr Mason attended Milo in the afternoon of the day of the accident. He requested Mr Mackay to take him to the site where Mr Cook had been electrocuted. Mr Mason reports: “On stepping down from the tractor my feet had sunk to a level just below my knees making it hard to walk without falling over. I decided to return to the site when the area had dried.”

The conductor in question was 6mm (which is around 0.25 inches) in diameter. An expert witness, Professor Stillman, identified it as made of steel, and that it “would probably have degraded as a result of the time it had been in the air” . That degradation results in its surface no longer being shiny, but dull.

Mr Mason explained his observations of the day of the accident: “I was there – this was between 1 o’clock and, say, 3 o’clock in the afternoon, and I found it very hard to actually make the wire out against the horizon, okay, even when I was – prior to going out there. When I was taking measurements and notes adjacent to where the vehicles were parked, I found myself checking myself there too because the wire went across the road at, as I said before, 1 and a half metres, and I kept losing it, and it was very easy. When you’re looking at other things, it was very easy to miss it.”

On 10 January 2001 Mr Peter Hyde, a member of the team investigating the accident for NorthPower, tried to re-enact Mr Cook’s journey from the access road to the spot where he was electrocuted. The NorthPower investigation report records: “Hyde found it extremely difficult to keep a set distance from the line route as he set off from the track across the rows. He had to focus on trying to negotiate the rows particularly where to place his feet. As the mud on his boots built up (from 1 kg clean to 3.5 kg each) he found he was getting snagged on the roots and stalks of the cotton bushes and having difficulty maintaining his balance. He was sinking into the mud to about 150 mm. He also found that the resistance of the cotton bushes to his moving through them was substantial. Ray Buddee also commented that when he was hurrying out to where Cook was lying, it had been difficult to focus on the low wire and its distance from him, as he had to concentrate on negotiating the rows of cotton bushes. It was very fortunate for Buddee that Mackay, at Cook’s side and near the low wire, had seen Buddee getting close to the wire as he headed towards them and had warned Buddee to move away from it.”

Mr Mason also re-enacted Mr Cook’s journey on 2 January 2001. He reports: “I walked from the road and under the power line towards the site of the accident. This required me to cross over the rows of cotton in slightly diagonal direction. Every 10 to 12 paces I found myself looking up at the power line and correcting the direction I was walking. I observed both Jim Crawford and Garry Brady (NorthPower) who were walking with me were having the same directional problem.”

Mr Mason explained in oral evidence why he kept looking up at the power line and correcting his direction: “A. Well, I took it on board that it was because the rows of cotton were diagonal, and it’s just, I suppose, human instinct that you try and walk a straight line, and I found myself veering off. Q. So to try and walk a straight line you had to keep checking? A. Yeah, I keep checking, because you’re getting your bearings on the rows of cotton, okay. But they were at an angle, so as I’ve written here, I suggested that I found myself just checking myself every now and again.” Results of NorthPower’s Investigation

The conclusion that NorthPower came to in its accident investigation was: “Cook must not have realised how close he had got to the live wire. The cotton rows he was crossing are at an angle of about 60 degrees to the line, Cook would have been concentrating on where to place his feet relative to the cotton bushes, trying to avoid stepping into the troughs of the rows, trying to avoid stumbling as he dragged his mud-caked boots from row to row. In concentrating on this and periodically looking up at the quite thin wire and with nothing to aid his judging the distance to the wire, the path he took must have brought him much closer to the low wire.”

Even after the accident had occurred, NorthPower did not criticise Mr Cook’s decision to start walking through the field while Mr Buddee was still on his way to turn the electricity off. NorthPower’s accident investigation report states: “It appears Buddee and Cook undertook an initial workplace risk assessment in that: · They identified the live wire as a hazard and agreed that isolating supply testing and earthing the line was the required control measure to eliminate this risk. · They realised that the low live wire was a public hazard and one of them needed to stay in the vicinity. · They recognised the muddy field as a hazard and that walking through the field would be difficult but had to be done to determine the extent of damage to both wires and the pole some 300 metres in the cotton field. They needed this information to be able to plan the work and do it safely.” (Emphasis added)

After Mr Cook’s accident, NorthPower issued a “hazard alert” to its staff relating to the situation that Mr Cook had encountered. The “hazard alert” included in the “Lessons to be learnt” from Mr Cook’s accident: “The need to always observe the minimum safe working clearances as per the Electrical Safety Rules, in this case 1000 mm, but to also realise that through Worksite Risk Assessment of this situation, a low hanging conductor can move a bit in the wind and can break or have one strand spring out, meaning that this minimum may not be enough. The importance of doing a full worksite Risk Assessment at the very start of a job. Note that a mental/visual risk assessment allowed for emergencies involving immediate danger to human life does not mean a partial or cursory assessment.” The Judge’s Finding on How Mr Cook Fell

The trial judge found: “There is no evidence that Mr Cook voluntarily placed himself or any part of his body inside the proscribed one metre clearance, nor can such an inference be drawn. It is more probable that he lost his balance in the muddy conditions and breached the clearance as a consequence of stumbling or falling, from a distance in excess of one metre. I am satisfied that by reason of his training and experience, Mr Cook would not have risked breaching the required clearance.” By the time of the appeal that finding was not contentious. Mr Cook’s Training Experience and Observations

Mr Cook started working for NorthPower in 1995 as a trainee linesman. He did a series of courses over the years until, by the time of the accident, he had qualified as a grade 6 linesman, the highest grade of linesman that NorthPower employed.

Operating staff of NorthPower were assessed annually, in writing. Mr Cook’s last assessment prior to the accident had been on 28 June 2000. To the question “Who should be the prime consideration when operating in the system?” he gave the correct answer, namely “self” . He accepted in cross-examination that if somebody else had authorised him to do some work, but he considered it unsafe, it was his duty not to proceed with the work.

He was well aware that the minimum safe operating distance prescribed by the NorthPower safety rules was one metre for a 22 thousand volt conductor, and that the reason for prescribing the minimum clearance was because of the possibility of flashover. He was also aware that pools of water near a conductor, moisture vapour and humidity could affect flashover, by making it more likely to occur. (The evidence established that moisture did not increase the distance over which flashover could occur, just the likelihood of it happening.) Mr Cook agreed that when he arrived at a work site he assessed the risk of injury to himself from the moment he got out of his truck, and that he assumed that a conductor is energised until he has personally tested it with a device that all electrical linesmen carry.

Though in cross-examination Mr Cook could not provide a reason why he could not wait until the line was isolated before undertaking his assessment of what repairs were necessary, in circumstances where Mr Cook had no memory at all of the day in question I would not place weight on that answer.

Mr Cook explained the point of checking on the wire itself as being to make sure it wasn’t going to break at any stage before work was done on the conductors or the poles or the cross arms. This was part of assessing the method by which the job should be done, and deciding what parts and equipment were needed for the job.

He said it would probably not be possible to assess the condition of a 22 kv conductor that was 6mm in diameter from a distance of five or ten metres away. He said: “You’d probably want to get to around about your clearances to see if there was any broken strands in the wire or anything like that, so around about 2 to 3 metres.” Duty of Care of Mr Stubbs

The trial judge made no explicit finding concerning the existence of a duty of care owed to Mr Cook by Mr Stubbs. His reasons suggest that he simply assumed that a duty of care existed. The written submissions of Aircair at the trial had contested the existence of a duty with reference to authority, but the judge made no reference to any of those authorities.

Aircair submits that where one has an experienced tradesman: (a) experienced in the task he was performing when injured; (b) who knew of the relevant danger; (c) who was accustomed to meeting and safeguarding against that danger; (d) who had time to assess and overcome the danger; and (e) was suitably equipped, no duty is owed to him.

Aircair bases that submission upon O’Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225; Commissioner for Railways v Schier [1964] NSWR 880; Daley v Gypsy Caravan Co Pty Ltd [1966] 2 NSWR 22 and Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7.

In O’Connor v Commissioner for Government Transport an experienced plumber died after falling from an awning on which his employer had instructed him to work. His task was to remove, cut and replace some of the corrugated iron sheeting on the awning, so that the awning would overhang the footpath to a lesser extent. While on the roof of the awning, and in the process of disassembling some of it, the corrugated iron buckled, causing him to fall. The cause of the buckling was that some of the rafters were affected by dry rot. The party of workmen sent to the site had been sent there equipped with trestles and a plank, that would have enabled the work to be performed without going on the roof of the awning, but they were not used. The presence of the dry rot was as easily ascertained by the workmen as by anybody, however skilled. Though a jury had awarded the widow of the workman damages in a claim against the employer under the Compensation to Relatives Act 1897 , the Full Court had set that verdict aside. The High Court (Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ) in a joint judgment upheld the Full Court’s decision.

The question at issue in the case was breach of duty, not existence of a duty of care. That was recognised when their Honours said, at [5], 230, “The standard of care for an employee’s safety is not a low one, but in a case such as this the question must be whether any suggested course that was omitted could really be regarded as reasonable.”

Their Honours pointed out that the awning was the very thing to be worked at, and thus the defect in it was not a defect in the premises provided by the employer as the place where the employee was to do his work. Their Honours continued, at [5], 230: “It was an ordinary question for a plumber to decide for himself how he would do the work. Obviously any experienced plumber would see that there must be a question whether a structure like the awning supported not by posts but by brackets was strong enough to bear his weight as he dismantled it. It was not made for that purpose and neither the deceased nor any of his companions can be supposed to have thought that it had been specially tested to see if it was strong enough. It seems fanciful to treat the question as one to be gone into and decided by some superior officer, as distinguished from the workmen on the spot, and still more fanciful to suppose that a warning or special instruction was demanded about so simple and obvious a matter requiring neither special skill or knowledge to decide and ordinarily treated as a matter for the man doing the job.”

Even though O’Connor turned upon questions of breach of duty rather than existence of duty, when both questions depend upon reasonable forseeability of a risk eventuating the types of considerations that their Honours regarded as decisive in O’Connor are capable of influencing whether a duty of care exists in situations, like the present, where any relationship between plaintiff and defendant is not an ongoing one but rather one that arises by virtue of the particular circumstances in which the plaintiff comes to be injured.

In Commissioner for Railways v Schier an employee of AIS sued the Commissioner for Railways when the employee sustained an injury while uncoupling two railway trucks the property of the Commissioner. A device on the trucks which would enable the uncoupling to occur from the side of the trucks, in safety, was not working. The employee went between the trucks to uncouple them manually, doing so while the engine was still engaged in a “bumping-up” operation. The procedure of going between the trucks while the “bumping-up” was still underway “… was a dangerous one, forbidden by AIS’s traffic regulations, which had been issued to the plaintiff, contrary to the instruction which the plaintiff had received when he was being trained as a shunter, obviously dangerous in itself, and understood by the plaintiff to be dangerous.” (per Sugerman J at 882)

Manual uncoupling by going between the trucks once “bumping up” had stopped was quite safe.

Sugerman J at 883 said that while the uncoupling lever was defective: “The defect was not latent or concealed. It was obvious in a significant sense, in that the lever was situated at, and designed to be worked from, a position of safety at the side of the truck, so that discovery of its defectiveness must occur on the initial attempt to uncouple the truck made from a situation in which no danger could ensue, from the circumstance that the lever turned out to be, in fact, defective. This is an entirely different situation from that of a latent or concealed defect, such that the danger becomes apparent, and injury or other harm may result, only during or after use or consumption. The lever may be denominated a safety device. But it is not one of those safety devices whose unexpected failure may endanger the lives or limbs of those who rely upon them. If it fails to work, the position merely remains as it was. The trucks remain to be uncoupled, and may be uncoupled by another method, which is safe, even if it is not so convenient as use of the lever.”

Indeed, it was precisely because the defect in the lever had been discovered by the plaintiff that he attempted the dangerous alternative method of carrying out the job.

The Court also held that the defective state of the lever was not the cause of the plaintiff’s injuries. Sugerman J quoted the portion of the speech in Grant v Australian Knitting Mills Ltd [1936] AC 85 at 105 that said that the principle of Donoghue v Stevenson [1932] AC 562: “… can only be applied where the defect is hidden and unknown to the consumer, otherwise the directness of cause and effect is absent; the man who consumes or uses a thing which he knows to be noxious cannot complain in respect of whatever mischief follows because it follows from his own conscious volition in choosing to incur the risk or certainty of mischance.”

As applied to the circumstances in Schier’s case , Sugerman J said, at 885, that the plaintiff “… was not injured because of some mechanical or physical sequel of the defect in the lever which he had discovered; the defect in the lever did not of itself, in that or any other sense, give rise to any danger to the plaintiff. He was injured because, of the courses which were then open to him, he elected that which was dangerous. The existence of a defect, such as this, might be thought of as a temptation to the impatient or the imprudent to attempt a short cut, even though dangerous. And the plaintiff says that he was instructed by his foreman to take this short cut. But, of whatever significance considerations such as these may be, in a contest between an employee and his employer, it is not to their like that Lord Evershed’s reference to no practical alternative should be applied, as against a third party supplier of the truck.”

Walsh J was “in general agreement” with the reasons of Sugerman J, and added, at 886: “If there are two courses which may be taken, one of which will avoid any risk of injury resulting from the situation created by the existence of the obvious and known defect, and the other of which will create a risk, then unless the latter choice is seen to be forced upon the plaintiff by the practical necessities of the situation itself, as viewed by a reasonable observer, then I think that the taking of that choice, with resultant injury, will not expose the supplier to liability. Even if the plaintiff can legitimately claim, as against his employer, that the urgencies of the employer’s business activities or its system of work or its express instructions, made the choice a reasonable one for the plaintiff to adopt, I think that this will not suffice, as against a stranger to that employment, to establish a relevant breach of the latter’s duty or the requisite causal relationship between the defect and the injury which the plaintiff sustains.”

Wallace J agreed with both Sugerman and Walsh JJ.

In Daley v Gypsy Caravan Co Pty Ltd the plaintiff was a qualified electrician who was requested by the owner of a caravan to investigate a slight electrical tingling that had been noticed in it. That caravan had been manufactured by the defendant. At the time of the investigation the caravan was in a caravan park, and connected to a 240-volt electrical supply. It would have been possible for the plaintiff to turn the supply off, but he decided to leave it on, to enable him to use a voltmeter that he had with him. He seized what he thought to be a piece of rubber flex that protruded below the floor of the caravan, believing it to be insulated. In fact, the object was copper pipe, connected to the frame of the caravan, into which a 240-volt current was passing. The plaintiff then suffered the injuries for which he sued. The plaintiff agreed that he knew that the cause of the fault was that 240 volts was getting into the caravan frame. The Court of Appeal (Wallace P, Jacobs and Asprey JJA) held that the defendant owed no duty to the plaintiff.

Their Honours recognised, at 26, that a manufacturer of products can owe duties to persons other than the purchaser, but that not everyone that is injured by a defect in the article manufactured, is necessarily within the class of “neighbour” . After quoting the statement of Lord Wright in Grant at 104-5 that “the duty cannot at the time of manufacture be other than potential or contingent” they said “[t]he duty becomes vested (or, as it were, crystallised) when some person who is injured falls within the classification of ‘neighbour’. The question whether any particular person is within that class is one of fact and degree.”

The reference to “neighbour” was, of course a reference to Lord Atkins’ statement in Donoghue v Stevenson at 580: “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

In Daley their Honours applied that principle at 26-27, saying: “A manufacturer of caravans, so constructed as to contain electrical wiring for the conduct of high voltage electricity, who sells such caravans with the knowledge that they would, in the ordinary course of use, be coupled to a high voltage electrical main could be found, in our opinion, to have in contemplation the fact that purchasers of those caravans would call in aid electricians to perform adjustments or repairs to the electrical system and that, as undoubtedly such caravans would in the contemplation of the manufacture be used over a substantial period of time, an electrician would be called to execute work thereon within a period certainly extending over two years from the date of its original purchase.”

That it was foreseeable that electricians might be involved in repairing the product in this way does not, of course, address all the elements of Lord Atkins’ test for existence of a duty. In Daley their Honours went on, at 27, to explicitly rely upon “… the principle of proximity, that is to say the situation in which the potential duty of care would arise or vest.”

They adopted Lord Atkins’ statement in Donoghue v Stevenson at 581 that it would “extend to such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care could know would be directly affected by his carelessness act.”

At 28, their Honours accepted that there could be some circumstances in which a manufacturer might owe a duty of care to a fully qualified person called in to repair a fault when the effects of the fault had become apparent though the precise nature of the fault itself was still unknown. They contemplated the possibility: “If an item of machinery ceased to function and an expert engineer was called in to ascertain and remedy the fault and for the purpose of his examination started the engine, the fact that the engine thereupon exploded and injured him through some hidden defect of manufacture may not enable the manufacturer, so long, at any rate, as the starting up of the engine was in all the circumstances a reasonable step in the expert’s process of examination, to shelter behind the knowledge of the expert knowledge of the engineer so as to claim that he was not the neighbour in law of the manufacturer.”

The critical matters that their Honours took into account in deciding whether a duty of care existed in the case before them were that the plaintiff was both qualified and licensed to investigate the cause of the electrical leakage, he was aware that the caravan was connected to 240-volt power and that it was escaping into the framework of the caravan, “… and he must be taken to be aware of the danger attaching to any person coming into contact with an electrical current of such high voltage. The fact that the plaintiff believed that the leakage was a minor one is not to deny that a major leakage was still possible. It appears to us that in those circumstances it could not be contended successfully, that the defendant could reasonably anticipate that the plaintiff was a person who would be directly affected by its carelessness. … The plaintiff’s error, whilst the current was still being supplied to the caravan from the council’s main, of mistaking a copper pipe for a piece of electrical flex was unfortunate but that was an error of judgment on his part and in no way attributable to the defendant.”

They concluded, at 29: “In the words of Lord Wright, his injury followed from his own conscious volition in choosing to incur the “risk of mischance” ; but this is not a question of contributory negligence on the part of the plaintiff which would only arise when the defendant’s negligence towards the plaintiff was established. In our view, the potential duty owed by the defendant manufacturer did not vest in relation to this particular plaintiff.”

Papatonakis v Australian Telecommunications Commission involved a Telecom linesman who was sent to repair a fault in the telephone system of a land occupier. The land occupier had extended the telephone line using cabling not as strong as Telecom’s usual cable. The linesman was injured when he placed his ladder against a makeshift pole that the occupier had used in extending the line. The force thereby exerted on the line caused the weak section of it to break, throwing the workman from the ladder. For the workman to rely on the makeshift pole as a support was contrary to his training by Telecom. However, it was not the substandard condition of the pole that caused his injury, it was the substandard condition of the added cable, a matter of which the workman did not know, and could not reasonably have been expected to know or find out for himself. Brennan and Dawson JJ at 30 recognised an applicable principle as being: “… where an independent contractor carrying on a particular trade is engaged by an occupier to work on his premises, the occupier is not under a duty to give warning of a defect in the premise if tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind.”

See, to similar effect, Mason J at 20-21 (dissenting), and Wilson J at 24. Deane J at 38 said of the cases that establish that proposition: “To the extent that they support the proposition that, in the ordinary case where there has been no undisclosed non-expert meddling with a technical installation, an occupier is entitled to rely upon an expert to work out the appropriate method of dealing with a technical matter calling for expert skill, they represent no more than common sense.”

The essence of the reason why, in Papatonakis , the majority held that the occupier was liable to the linesman was expressed by Brennan and Dawson JJ at 30: “It is one thing to leave it to an independent contractor to decide for himself how to do his work; it is another thing to leave him in ignorance of a fact that is material to his decision if he, using reasonable care, might not discover that fact.”

The statement of Brennan and Dawson JJ in Papatonakis that I have quoted at [95] above has been relied on by Santow JA (with whom McColl JA and Davies AJA agreed) in Bhambra v Roet [2003] NSWCA 393 at [34] in finding that a home owner owed no duty of care to provide handrails on the building site to an experienced carpenter engaged to do work on the home, even when those handrails would have prevented the carpenter from being injured in the manner in which he was actually injured. See likewise Davis v Nolras Pty Ltd [2005] NSWCA 379 at [39]-[49] per Ipp JA, [64] per Brereton J; State Rail Authority of NSW v Watkins [2001] NSWCA 405 at [55]-[57] per Mason P (with whom Heydon JA and Sperling J agreed); Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267; (2002) Aust Torts Reports ¶81-673 at [52].

I recognise that Mr Stubbs may well have owed duties of care to people other than Mr Cook concerning the operation of the aircraft. He may have owed a duty to people on the ground who might be injured if the plane or anything dropped from it struck them or caused them to injure themselves while taking evasive action. Particularly when he knew he was flying in close proximity to high voltage electricity cables, he may well have owed a duty to people on the ground who might be struck or come into the immediate vicinity of a wire as it fell, to inexperienced people who approached too close to the fallen wire, to people who might come near a fallen wire without realising it was there, or to property owners who it was reasonably foreseeable may suffer damage in consequence of the fall of the wire. But that A owes a duty of care to one person, or people who fit within a particular description, does not necessarily mean that A owes a duty of care to anyone else.

In deciding whether Mr Stubbs owed a duty of care to Mr Cook, it is necessary to bear in mind that all of the cases on which Aircair relies come from times when the understanding of the circumstances in which a duty of care rises was not quite the same as it is today. In particular, it is to be observed that in Daley their Honours explicitly relied on “the principle of proximity” (though with an explicit statement of what they understood by it). Direct application of the notion of “proximity” can no longer be seen as a safe guide to when a duty of care exists: Perre v Apand Pty Ltd [1999] HCA 36 ; (1999) 198 CLR 180 at [7]-[10] 193-194 per Gleeson CJ, [25]-[27] 197-198 per Gaudron J, [70]-[82] 208-212 per McHugh J, [191] 251 per Gummow J, [245]-[247] 268-270, [255] 273, [259] 275, [267] 277-278, [279]-[287] 283-286, [292]-[296] 288-289 per Kirby J, [330]-[335] 300-303 per Hayne J, [389] 318-319, [393] 321-322, [398]-[400] 323-324, [406] 326 per Callinan J. More recent High Court authority has referred to proximity as a doctrine that is “rejected” ( Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [29]-[30], 563-564 per McHugh J; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at [236], 624-625 per Kirby J) “no longer … the criterion of a duty of care” ( Graham Barclay Oysters Pty Ltd v Ryan at [99], 583 per McHugh J), “one that has not served as a unifying doctrine” ( Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 at [53], 341 per Gaudron J), and “not only difficult to define but difficult to apply” ( Tame at [257], 405 per Hayne J). In Prestige Property Services Pty Ltd v Choi [2007] NSWCA 363 Mason P (with whom Hodgson JA and Handley AJA agreed) said at [36] that a submission that a duty of care was based on proximity “had an old-fashioned and unhelpful ring about it.” In my view, it is necessary to decide whether a duty of care was owed by looking in a more particular fashion at facts relating to the particular relationship in which Mr Stubbs and Mr Cook stood.

In the present case, a person in Mr Stubbs’ position ought reasonably have foreseen that careless flying in the immediate vicinity of the power line might bring the power line down. He should reasonably have foreseen that a power line that was brought down was capable of inflicting very serious injury or death on a person who came near it. However, Mr Cook was not on the ground anywhere in the vicinity at the time the plane was flying. It is reasonably foreseeable by an aircraft pilot that if he flies the plane in such a fashion as to bring down a power line, power workers will come to repair the damage. It is reasonably foreseeable that, once such a power worker had come, he could injure himself as a consequence of his own inadvertence. However, to the extent that a reasonable person considering the matter can know in advance, a power worker sent to repair a damaged power line is likely to be properly trained and experienced, and likely to be able to take care of himself so far as avoiding electric shock is concerned. Those likelihoods are such that it would not seem to be a realistic possibility that a power authority would send a person who was not properly trained, experienced, and capable of protecting himself. In that circumstance, the taking of reasonable care for the interests of the hypothetical electrical power worker does not result in the imposition of a duty of care to that power worker on the pilot. I conclude that Mr Stubbs did not owe a duty of care to Mr Cook to operate the aircraft with reasonable care.

In these circumstances, no questions arise of whether a duty was breached, or whether Mr Cook’s injuries were caused by a breach of duty. Application of DAA

The trial judge’s reasons for holding that liability arose under DAA were: “… there was an impact of the type contemplated by s 10(d), and an uninterrupted causal relationship between that impact and the injuries. Mr Cook, whilst on land, suffered personal injury caused by ‘something’ that was a result of the impact of the aircraft, in flight, with the conductor. That ‘something’ was the dislodgement of the conductor from a supporting pole, which created the foreseeable risk of injury to persons in the vicinity, or who might approach the live conductor, such as linesmen from North Power.”

Aircair and ACQ submit that there are two separate errors in that reasoning process. The first is that it accords too wide a construction to section 10(1)(d) DAA . The second is that the factual finding of causation is mistaken. Construction of Section 10(1)(d)

Aircair and ACQ submit that sections 10(1)(a)-(c) DAA apply where an aircraft, a part of an aircraft, or something falling strikes the plaintiff or the plaintiff’s property, and that section 10(1)(d) is confined to situations such as where either an aircraft, a part of an aircraft, or something falling from an aircraft strikes an object that then strikes the plaintiff or his property with no opportunity for the plaintiff to avoid an injury. These appellants give examples of section 10(1)(d) applying where a part of an aircraft falls onto a roof, which then falls onto and strikes the plaintiff, or where a fire results from a crashed aircraft, and burns the plaintiff.

I do not agree that the construction of section 10(1)(d) is so limited. Explaining why involves examination of the history of this legislative topic.

The Convention on Damage caused by Foreign Aircraft to Third Parties on the Surface (" the Rome Convention ") was agreed between various countries in Rome on 7 October 1952. Article 1, 1 provided: "Any person who suffers damage on the surface shall, upon proof only that the damage was caused by an aircraft in flight or by any person or thing falling therefrom, be entitled to compensation as provided by this Convention. Nevertheless there shall be no right to compensation if the damage is not a direct consequence of the incident giving rise thereto, or if the damage results from the mere fact of passage of the aircraft through the airspace in conformity with existing air traffic regulations."

Articles 2-4 identified on whom that liability fell. Article 6 provided: "Any person who would otherwise be liable under the provisions of this Convention shall not be liable for damage if he proves that the damage was caused solely through the negligence or other wrongful act or omission of the person who suffers the damage or of the latter's servants or agents. If the person liable proves that the damage was contributed to by the negligence or other wrongful act or omission of the person who suffers the damage, or of his servants or agents, the compensation shall be reduced to the extent to which such negligence or wrongful act or omission contributed to the damage."

Articles 11 and 12 provided that, save in the case of a person who suffers damage caused by a deliberate act or omission of the operator, his servants or agents, done with intent to cause damage, the liability for damage was limited in accordance with a scale provided by the Convention. The limitation of liability was imposed by fixing a sum that was the total amount of compensation that could be paid for each aircraft and incident. The amount so payable was calculated on a sliding scale depending on the weight of the aircraft, and in a monetary measure that depended upon the value of gold from time to time. Article 21 provided for a period of limitation of two years from the date of the incident that caused the damage. That period could be suspended or interrupted under the law of the court trying the action, but in any case would be extinguished on the expiration of three years from the date of the incident which caused the damage. Article 23 stated that the Convention applied to damage contemplated in Article 1 caused in the territory of a Contracting State by an aircraft registered in the territory of another Contracting State.

The Civil Aviation (Damage by Aircraft) Act 1958 (Cth) was passed to give effect in Australian law to the Rome Convention, to the extent that the Federal Parliament was then conceived as having power to do so. It gave approval to the ratification by Australia of the Convention (section 7). Part II of the Act provided that the provisions of the Convention have the force of law in Australia (section 8). In this way, it allowed an action for damages to be brought in Australian courts in those circumstances in which the Convention itself established a liability in international law. Thus, the action for damages created by Part II applied only to the limited class of aircraft that fell within Article 23 of the Convention. Part III of the Act provided for liability to arise for damages caused by certain aircraft that were not covered by the Convention, in the same circumstances as the Convention would cause liability for damage to arise for an aircraft to which it applied. The aircraft to which Part III extended that liability were, broadly, aircraft engaged in trade and commerce between Australia and another country and that were in flight in Australia.

Some Australian states have enacted legislation to give effect to principles somewhat similar to those of the Rome Convention. In New South Wales, section 2 Damage by Aircraft Act 1952 (“ the 1952 NSW Act ”) provides: “(1) No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground, which, having regard to wind, weather, and all the circumstances of the case is reasonable, or the ordinary incidents of such flight, so long as the provisions of the Air Navigation Regulations are duly complied with. (2) Where material loss or damage is caused to any person or property on land or water by, or by a person in, or an article or person falling from, an aircraft while in flight, taking off or landing, then unless the loss or damage was caused or contributed to by the negligence of the person by whom it was suffered, damages in respect of the loss or damage shall be recoverable without proof of negligence or intention or other cause of action, as if the loss or damage had been caused by the wilful act, neglect, or default of the owner of the aircraft.”

It expressly provides that loss or damage includes, in relation to persons, loss of life and personal injury. That State legislation was not, however, inspired by the Rome Convention – as Brownie J explained in Southgate v Commonwealth of Australia (1987) 13 NSWLR 188 at 190: "The Damage by Aircraft Act had its origin in s 9 of the Air Navigation Act 1920 of the United Kingdom, which was successively replaced by other Acts by the name Civil Aviation Act of 1949 and 1982. There are statutes in like terms in Victoria, Tasmania, Western Australia and New Zealand…”

A significant difference between this New South Wales legislation and the Rome Convention is that there is no limitation on liability under the New South Wales statute.

The DAA repealed the Civil Aviation (Damage by Aircraft) Act 1958 (Cth) . Clause 3 DAA provides: “The main object of this Act is to facilitate the recovery of damages for certain injury, loss, damage or destruction caused by aircraft, or by people, animals or things that are dropped, or that fall, from aircraft that are in flight.” The use of the word “facilitate” shows an intention to improve the pre-existing situation.

The purpose of the legislation was explained by the Minister in the second reading speech (House of Representatives, Parliamentary Debates (Hansard), 24 March 1999, 4163 ff) as being "… to improve compensation for members of the public who suffer personal injury or property damage as third parties on the ground involved in an air accident". Other indications of the remedial intention of the statute are found in the Minister’s statement that: “… as the Bill is intended to provide members of the public with compensation that is as prompt and as comprehensive as practicable, it modernises and strengthens the provisions of relevant State legislation, where clear public gains have been possible.” (4164) and in the Minister’s reference at 4164-5 that: “It is intended that compensation will also be as comprehensive as practicable, to cover all economic and non-economic loss possible.”

The Minister expressly stated: "It should be stressed that the involvement of members of the public in an air accident as third parties on the ground is generally not due to any choice or action on their part. In the great majority of cases they will not have contributed in any way to the accident, for example, by contributory negligence or by choosing aviation as a mode of transport."

He identified unsatisfactory features of the existing arrangements concerning damage caused by aircraft as being the limit on compensation available under the Rome Convention, that the Convention had been adhered to by few countries, and that it was unsatisfactory to have limited liability for damage by aircraft applying to some aircraft flying in Australian skies but not to others. In those circumstances, he announced an intention to denounce the Rome Convention.

As well, the Minister noted that not all States and Territories had legislation that imposed strict liability concerning damage by aircraft. The Minister urged those states that had not enacted legislation imposing strict liability (South Australia and Queensland) to do so, and stated that the new legislation would apply in the territories.

The DAA went further to achieve national uniformity in the legislation governing damage by aircraft than the Minister had specifically announced in the second reading speech. DAA relied on a much wider range of Commonwealth heads of power to identify the aircraft to which it applied than the Civil Aviation (Damage by Aircraft) Act 1958 had done, and in that way significantly widened the scope of the aircraft to which Commonwealth legislation on the subject applied. Section 9 DAA stated: “(1) This Act extends to each external Territory. (2) This Act does not apply in relation to a Defence Force aircraft. (3) This Act applies to acts, omissions, matters and things within Australian territory. (4) Subject to subsection (2), this Act applies in relation to the following: (a) Commonwealth aircraft; (b) aircraft owned by a foreign corporation or a trading or financial corporation (within the meaning of paragraph 51(xx) of the Constitution); (c) aircraft (including foreign aircraft) engaged in: (i) international air navigation; or (ii) air navigation in relation to trade and commerce with other countries and among the States; or (iii) air navigation conducted by a foreign corporation or a trading or financial corporation (within the meaning of paragraph 51(xx) of the Constitution); or (iv) air navigation to or from, or within, the Territories; or (v) landing at, or taking off from, a place acquired by the Commonwealth for public purposes.”

There was no examination of the circumstances by virtue of which the DAA was capable of applying to the aircraft involved in the present case, and both the trial and the appeal were conducted on the basis that the DAA was capable of applying to that aircraft. One reason for that may well be that the aircraft falls within section 9(4)(b) or section 9(4)(c)(iii) or both. Limited Reading of “Caused By” Because of Limitation of Liability to Impact and Its Consequences?

ACQ and Aircair submit that the effect of the Act providing strict liability for impacts of the kind listed in section 10(1)(a)-(c) and the consequences of such impacts, is that it does not provide strict liability for loss suffered other than as a consequence of an impact. As the Minister explained in the second reading speech: “Alleged minor damage from such incidents as tile movement from wake vortices, or trespass or nuisance claims from noise or vibrations and the like are not included.”

In this respect, the scope of operation of DAA is narrower than that of, for instance, the 1952 NSW Act which imposes strict liability where the loss or damage in question is caused by an aircraft while in flight, taking off or landing, or by a person in an aircraft in flight, taking off or landing, or by an article or person falling from an aircraft while in flight, taking off or landing. In Southgate Brownie J held that injuries suffered by a horse rider who was injured when her horse was frightened by a low flying helicopter were within the scope of the 1952 NSW Act . Damage caused in such a way, with no impact as part of the causal sequence by which the damage is sustained, would not now fall within DAA . Given the way in which DAA is now likely to cover most of the aircraft operating in Australian skies, a question may one day arise about whether DAA prevails, by virtue of section 109 Constitution , over the 1952 NSW Act in those situations that are covered by the language of both statutes, and in situations where an aircraft falls within the language of both DAA and the 1952 NSW Act but a loss falls within the provisions of the 1952 NSW Act but not within DAA . However, no such question arises in the present case.

The Minister in his second reading speech explained the limitation of liability to damage resulting from impact as being “… a balance against this comprehensive and relatively rigorous application of liability.”

Contrary to the submission of Aircair and ACQ, I do not see Parliament’s intention to limit the scope of liability to damage caused by impacts and the consequences of impacts as providing a reason for adopting a narrow reading of the phrase “caused by” in section 10. Limited Reading of “Caused By” Because of Limitation of Liability to Aircraft In Flight?

Aircair and ACQ rely on the fact that the liability of DAA only attaches in relation to an aircraft “in flight” . Section 5 DAA defines precisely when it is that an aircraft is “in flight” . I see no reason why the need for an aircraft to be “in flight” before section 10(1) applies provides any reason to adopt a narrow reading of the phrase “caused by” in section 10(1). Limited Reading of “Caused By” Because of Absence of Provision for Contributory Negligence?

Aircair and ACQ also submitted that there is no express provision in the DAA for contributory negligence, and that would be unexceptional if the construction for which those appellants contend was correct, as one could not think of any situation that would fall within that construction of the scope of section 10(1), and yet be one in which the person injured was guilty of contributory negligence.

The principle impliedly invoked here is one of statutory construction. In Ganter v Whalland [2001] NSWSC 1101; (2001) 54 NSWLR 122 at [35]-[36], 131 I said: “A legitimate check for a court to use, in deciding whether an interpretation of a statute arrived at by grammatical analysis is indeed the correct interpretation, is to consider whether that interpretation produces practical results which are sensible, rather than: “… ‘absurd’, ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’” ( Cooper Brookes (Wollongong) Pty Ltd v Federal Commission of Taxation (1981) 147 CLR 297 at 321 per Mason and Wilson JJ).” Jordan CJ expressed the same notion by saying “a court is entitled to pay the legislature the not excessive compliment of assuming that it intended to enact sense and not nonsense”: ( Hall v Jones (1942) 42 SR (NSW) 203 at 208). From the strength of the language which these judges employed to describe the sort of consequences which will cause a possible construction to be rejected, it is apparent that an anomaly arising from what, on all other tests of construction, is the correct construction of legislation, must be a very serious one, before the court is justified in using that anomaly as a reason for rejecting what otherwise seems the correct construction. Were courts to act otherwise, they would risk taking over the function of making policy choices which properly belongs to the legislature.”

As later appears (paras [144]-[180]) I have reached the conclusion that contributory negligence is not available as a defence to an action under DAA .

I do not see it as being a serious anomaly that the proper construction of the legislation leads to the conclusion that contributory negligence was not available as a partial answer to a claim for damages under section 11 DAA . There is nothing irrational in Parliament adopting a policy that participants in a particular industry should bear the consequences of mishaps arising from the operations of that industry.

As well, it is noticeable that the legislative predecessors of DAA made express provision for contributory negligence being a defence to the statutory action they created, while DAA says nothing about contributory negligence. The legislative predecessors to which I refer are the chain of English legislation from the Air Navigation Act 1920 onwards, the 1952 NSW Act and analogous legislation in some other States that was in force prior to the enactment of DAA (ss 30-31 Wrongs Act 1958 (Vic); ss 3-4 Damage By Aircraft Act 1963 (Tas); ss 4-5 Damage By Aircraft Act 1964 (WA)), and the Rome Convention as adopted and extended by the Civil Aviation (Damage By Aircraft) Act 1958 (Cth). An omission of this kind is commonly regarded as an indication that the omission reflects a deliberate attempt to alter the law. In the present case there are the various indications of intention, to which I have earlier referred, that DAA should improve the position of claimants for compensation by comparison with the law that had existed prior to DAA .

The English legislation of 1920 and the Australian State legislation that copied it all contained an exclusion of liability for trespass or nuisance by reason of the ordinary and legal flight of aircraft, as well as the imposition of strict liability in relation to certain kinds of damage caused by the operation of aircraft. In Glen v Korean Airlines Co Ltd [2003] EWHC 643 (QB); [2003] QB 1386 at [29], 1394 Simon J paraphrased the second reading speech given by the Minister who introduced the 1920 legislation, Mr W S Churchill MP, “as being the reconciliation of the rights of land owners in the super-incumbent air with the practical necessities of civil aviation. The reconciliation was to be achieved by laying down the principle that no action would lie for aerial trespass or nuisance simply by reason of the aerial flight through the column of air; but that, where damage was done to any persons on the ground, the owner of the offending aircraft would be liable without forcing the injured person to prove negligence.” It is not to the point that it is in any event not a trespass for an aircraft to pass over someone’s land at a height greater than the owner needs for the ordinary use and enjoyment of his or her land and the structures upon it: Bernstein v Skyviews & General Ltd [1978] 1 QB 479.

Achieving a trade-off between the rights of two different groups of people affected by a particular type of activity is a commonplace feature of legislation. Even if it were the case that much of the work formerly done by section 2(2) 1952 NSW Act and analogues in other States have been taken over, pursuant to section 109 Constitution, by DAA , section 2(1) would still remain effective. I see nothing anomalous in the federal Parliament having decided that the terms of the trade-off between the interests of land holders and members of the aviation industry with potential liability under DAA should be achieved on different terms to those of the previous legislation, not involving contributory negligence being a defence.

The Minister in the second reading speech relating to the DAA made express reference to contributory negligence (para [116] above), and did so not by saying that potential claimants under the Act will never engage in contributory negligence, but by saying that “in the great majority of cases” they will not have engaged in contributory negligence. I recognise that there are some aspects of the Minister’s speech that do not make this same distinction – he referred to the Act providing “prompt and adequate compensation for the innocent victims of air accidents” (4164), and the legislation assisting in providing compensation “for those members of the non-flying public unfortunate enough to be included among the victims of an air accident, through no choice or action of their own” (4165). These statements seem to me to be a reflection of the “great majority of cases” in which the legislation would operate. As with all the provisions of the Minister’s speech to which I have referred, reliance as an aid to construction can only be placed on them in accordance with section 15AB Acts Interpretation Act 1901 (Cth).

There is nothing irrational about a legislature failing to make special provision for a type of situation that it envisages may occur, when it envisages that it will occur fairly infrequently, so as not to justify special provision. Thus, that DAA does not have contributory negligence as a defence to a claim is not a reason for adopting the narrow construction of causation for which ACQ and Aircair contend. Conclusion on Construction of “Caused By” in Section 10(1)(d) DAA

I conclude that there is no reason to adopt the narrow construction of section 10(1) for which these appellants contend.

Article 1 of the Rome Convention had provided for there to be no right to compensation “if the damage is not a direct consequence of the incident giving rise thereto”. In my view, section 10(1)(d) DAA aims to alter this aspect of the previous law, and makes clear that it is not only the direct consequences of an impact that attract limited liability, but also indirect or consequential results of an impact. Such a construction is consistent with the language, the legislative history, and the purpose of DAA .

In March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 the majority of the High Court (Mason CJ, Deane, Toohey and Gaudron JJ) endorsed, in the context of the tort of negligence, a test of causation whereby it was a question of fact to be answered by reference to commonsense and experience, and one into which considerations of policy and value judgments necessarily enter. When causation is so regarded, the law has no difficulty in recognising that there can be multiple causes of the one damage.

In Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 525 Mason CJ, Dawson, Gaudron and McHugh JJ held that the entitlement of a person who suffers loss or damage “by conduct of another person that was done in contravention of” certain identified provisions of the Trade Practices Act 1974 (Cth). They held that the word “by” “… clearly expresses the notion of causation without defining it or elucidating it. In this situation, s 82(1) should be understood as taking up the common law practical or common-sense concept of causation recently discussed by this court in March v Stramare E & MH Pty Ltd (1991) 171 CLR 506, except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act. Had Parliament intended to say something else, it would have been natural and easy to have said so.”

In my view, the understanding of the concept of causation that is expressed in March v Stramare should similarly be applied to the expression “caused by” in section 10(1) DAA . While the meaning that is given to an expression in one area of the law is not necessarily the same as the meaning given to that same expression in a different area of the law, I see nothing in the purpose for which a judgment about causal connection is made in the law of negligence that differentiates it from the purpose for which a judgment is made about causal connection for the purpose of the application of DAA . In both cases, the purpose is deciding how legal liability to pay damages for loss or damage should fall. Further, in DAA there is a particularly close connection between the way in which causation works to attribute that responsibility, and the way causation works in the law of negligence. It arises in section 11 DAA , where it provides that damages of a kind referred to in section 10 are recoverable “as if the injury, loss, damage or destruction had been caused by the wilful act, negligence or default of the defendant or defendants” . Causal Connection Between Impact and Injuries?

In my view, the trial judge made no error in holding that there was a causal relationship between the impact and the injuries that Mr Cook sustained. It was the impact that created the situation that caused Mr Cook to be there at all. I recognise that that is not in itself sufficient to establish a causal connection. As Mason CJ said in March v Stramare at [21], 516, “… a factor which secures the presence of the plaintiff at the place where and at the time when he or she is injured is not causally connected with the injury, unless the risk of the accident occurring at that time was greater.”

In the present case, the impact caused the conductor to be hanging low over a field that was uneven, extraordinarily boggy, and methodically strewn with obstacles in the form of the rows of cotton bushes. The conductor was extremely dangerous in itself; the impact caused it to be in a position where people were at risk of getting dangerously close to it, and Mr Cook was injured when he encountered that precise risk. The conductor itself was thin and difficult to see against an overcast sky. Mr Cook did not make a deliberate decision to come dangerously close to the conductor. Mr Cook’s conduct in entering the field to investigate the situation while the power was still turned on was something that, in itself, was not dangerous, provided he stayed sufficiently far from the conductor. His employer did not disapprove of Mr Cook having entered the field, even after the very serious consequences of his having done so were known. While inadvertence on the part of Mr Cook was clearly a contributory factor to his injuries, his inadvertence was not such as to make him the sole author of his own misfortune. The difficulty in keeping a clearance of at least one metre from the wire is clearly illustrated by the way that, even after Mr Cook’s accident, Mr Buddee needed to be warned to move away from the wire, and by the difficulties experienced by each of Mr Hyde and Mr Mason when they made their attempted re-enactments of Mr Cook’s journey. Relationship of Finding of Causation to Finding of No Duty

This finding of causal connection is consistent with my earlier finding that no duty of care was owed by Aircair to Mr Cook. One of the functions of a duty of care in the law of negligence is to identify those circumstances in which a person is liable for the causal consequences of his or her action or failure to act. Those situations where a defendant owes a duty of care to the plaintiff, and that duty has been breached, are a subclass of the circumstances in which a defendant’s action or failure to act has caused a loss to a plaintiff. It is only in relation to that subclass that legal liability can exist in negligence. The present case falls outside that subclass.

Further, there is a fundamental difference between the way one goes about establishing whether a duty of care exists, and the way one goes about deciding whether a loss is a consequence of an action of the defendant. Existence of a duty of care is decided as at the time the defendant is acting. It is a forward-looking, predictive activity, that involves predicting who are the people who could be affected by the contemplated action. Sometimes those people will be identifiable individually (as when a surgeon is about to operate on a particular person), sometimes they will be identifiable only as a class or by description. Another part of the inquiry involves ascertaining what possible consequences of harm to those people are reasonably foreseeable. Another part of the inquiry involves ascertaining whether reasonable care ought be required on the part of the actor to avoid that harm. By contrast, deciding that there is a causal link between a particular action and particular damage is carried out as at the date of the trial, with hindsight and the benefit of any investigation there may have been into the cause of the damage. Application of the Law of Contributory Negligence

Part 3 of the Law Reform (Miscellaneous Provisions) Act 1965 (the “ 1965 Act ”), in the form relevant to these proceedings, provides: “8. In this Part: wrong means an act or omission that: (a) gives rise to a liability in tort in respect of which a defence of contributory negligence is available at common law, or (b) amounts to a breach of a contractual duty of care that is concurrent and co-extensive with a duty of care in tort.”

Section 9 of the 1965 Act provides: “(1) If a person (the claimant ) suffers damage as the result partly of the claimant’s failure to take reasonable care ( contributory negligence ) and partly of the wrong of any other person: (a) a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and (b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.”

The operation of these provisions is modified by Part 1A (which runs from section 5 to section 5T) Civil Liability Act . Relevant provisions of that Part are: “5. In this Part harm means harm of any kind, including the following: (a) personal injury or death, (b) damage to property, (c) economic loss. negligence means failure to exercise reasonable care and skill. … 5A(1) This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise . … 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.”

Sections 5R and 5S Civil Liability Act commenced on 6 December 2002, well after Mr Cook sustained his injury. The whole of Part 1A Civil Liability Act was inserted as part of the amendments to the Civil Liability Act made by the Civil Liability (Personal Responsibility) Act 2002 . However, the transitional provisions relating to those amendments provided that they extended to civil liability arising before the commencement of the amendments, but not to proceedings commenced in a court before the amendment ( Civil Liability Act Schedule 1, Part 3, clause 6). As Mr Cook’s proceedings did not begin until 2004, these provisions of the Civil Liability Act are capable of applying to them, and will apply if the wording of the provisions is adequate to attach to Mr Cook’s proceedings.

Notwithstanding that the 1965 Act and the Civil Liability Act are State legislation, ACQ and Aircair submit that the provisions as to contributory negligence that they establish apply to the cause of action that arises under DAA , a Commonwealth law. The first, and uncontroversial, step in that argument is that because the claims made in the proceedings included a claim for damages arising under the DAA , the District Court was exercising federal jurisdiction in deciding the proceedings, and this Court is exercising federal jurisdiction in deciding the appeal.

The federal jurisdiction arises in this way. Section 76(ii) Constitution enables the Parliament to make laws conferring original jurisdiction on the High Court in any matter arising under any laws made by the Parliament. Section 39(2) Judiciary Act 1903 (Cth) invests “the several Courts of the States” with federal jurisdiction in all matters in which original jurisdiction can be conferred upon the High Court (save for a presently irrelevant exception and restriction). Section 39(2) operated to confer on the District Court jurisdiction to decide the dispute arising under the DAA , and on this Court the jurisdiction to hear the appeal relating to that dispute. Even though the litigation involved claims that arose solely under the common law, once any aspect of the case involves the exercise of federal jurisdiction, the entirety of the jurisdiction exercised by that court is (again subject to a presently irrelevant exception) federal jurisdiction: Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 at 373. In exercising that federal jurisdiction, section 79 of the Judiciary Act applies. Section 79 provides: “State or Territory laws to govern where applicable The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.”

The trial judge accepted that, by this route, any provisions of the Civil Liability Act that were “applicable” could be applied even to the claim for damages arising under DAA . That his Honour took that view is not a subject of controversy on this appeal. It was because he took that view that he used the provisions of the Civil Liability Act , rather than those of the common law, in assessing the quantum of damages that Mr Cook was entitled from ACQ and Aircair under section 11 DAA .

ACQ and Aircair argued that there were two separate routes by which contributory negligence came to be available in (on the first version of the argument) any action under DAA , or (on the second version of the argument) this particular action under DAA .

The first argument derives from sections 10 and 11 DAA . Just as the trial judge correctly held that the provisions of the Civil Liability Act relating to assessment of damages were applicable to the action that Mr Cook brought (notwithstanding the Civil Liability Act is a State statute) so, they submit, the provisions of section 79 Judiciary Act , and the terms of section 11 DAA itself make the State provisions concerning contributory negligence applicable, because those State provisions would be applicable in an action to recover damages for injury, loss, damages or destruction caused by the negligence of the defendant.

I do not find that argument persuasive. Section 10(1) identifies a type of injury, loss, damage or destruction by reference to both the location of the person or property who suffers it, and the cause of that injury, loss, damage or destruction. Section 11 creates a statutory cause of action, whereby damages in respect of such injury, loss, damage, or destruction are recoverable from certain identifiable people, and in an identified manner. That manner is: “… without proof of intention, negligence or other cause of action, as if the injury, loss, damage or destruction had been caused by the wilful act, negligence, or default of the defendant or defendants.” (emphasis added)

The phrase just quoted requires the statutory action for damages under section 11 to have the attributes of an action for recovery of damages in respect of an injury, loss, damage or destruction that had been caused by the wilful act, negligence or default of the defendant or defendants, save only that it is not necessary to prove intention, or negligence, or any other cause of action. State and Territory laws apply in all cases where federal jurisdiction is exercised “in all cases to which they are applicable” . One needs to identify something that makes a particular law “applicable” in a particular case.

An example can be found in the way the provisions of the Civil Liability Act concerning computation of damages for personal injuries come to apply to an action under DAA . The provisions of the Civil Liability Act that require a different method of computation of damages to that of the common law are contained in Part 2 of the Act. Section 11 defines “personal injury damages” as meaning “damages that relate to the death of or injury to a person” . Section 11A provides: “(1) This Part applies to and in respect of an award of personal injury damages, except an award that is excluded from the operation of this Part by section 3B. (2) This Part applies regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise. (3) A court cannot award damages, or interest on damages, contrary to this Part.”

It is to be observed that the definition of “personal injury damages” is quite general, in that the damages are not restricted to damages arising on any particular cause of action, or any under any particular system of law. The provision in section 11A(2) that says the Part applies to actions “in tort, in contract, under statute or otherwise” has the effect that the provisions of the Part are, in their terms, capable of applying to a cause of action for damages under DAA . The provisions of section 11A Civil Liability Act make “applicable” the provisions of Part 2 of that Act to an action for damages under DAA that is not excluded by section 3B. No provision of section 3B applies to Mr Cook’s actions for damages against ACQ and Aircair.

One needs to enquire whether there is anything that similarly makes "applicable" the law of contributory negligence in the type of action that section 11 says that the right to recover damages that it creates must model itself on, namely an action for recovery of damages in respect of an injury, loss, damage or destruction that has been caused by the wilful act, negligence or default of the defendant or defendants. I turn to that enquiry.

Section 5R and 5S Civil Liability Act presuppose that someone has been contributorily negligent. They operate to modify the way in which the law of contributory negligence operates under the 1965 Act rather than create by themselves any particular rights or defences. Thus, the scope within which section 5R and 5S can operate must be ascertained by first considering the 1965 Act .

Under section 9 of the 1965 Act , a defence of contributory negligence is available only in circumstances where the defendant has committed a “wrong” . An essential attribute of the definition of a “wrong” in section 8 of the 1965 Act is that it is an act or omission that gives rise to a liability in tort in respect of which a defence of contributory negligence is available at common law. Thus, it is necessary to inquire in what circumstances a defence of contributory negligence is available at common law. In particular it is necessary to enquire whether a defence of contributory negligence is available at common law in an action for recovery of damages in respect of an injury, loss, damage or destruction that has been caused by the wilful act, negligence or default of the defendant or defendants.

It is elementary that a defence of contributory negligence is available at common law in an action for recovery of damages in respect of an injury, etc, caused by the negligence of the defendant or defendants. The availability of a defence of contributory negligence in action for recovery of damages in respect of an injury, etc, caused by the “wilful act” or “default” of the defendant or defendants is more complex.

Glanville Williams, ( Joint Torts and Contributory Negligence (1951) Stevens & Sons Limited at 197) identifies six different species of legal liability in relation to which he delineates the field of contributory negligence at common law. These are: "(1) torts of wrongful intention; (2) torts based on fault where the defendant did not, on the facts, cause the damage intentionally; (3) torts based on strict liability where the defendant, on the facts, acted negligently or the damage was accidental; (4) statutory duties of insurance; (5) unintentional breaches of contract; and (6) unintentional breaches of trust."

Torts of wrongful intention he subcategorises into two kinds: "(a) torts based on intentional wrongdoing solely, ie, those that can be committed only intentionally, and (b) those based on fault or strict liability where the defendant on the facts caused the damage intentionally. ("Fault" means, of course, either intention or negligence.)"

Examination of Glanville Williams at 198-222 shows that when contributory negligence was available as a defence at common law is a matter of considerable complexity. For example, if the consequences of which the plaintiff complains were intended by the defendant, no defence of contributory negligence is available: Quinn v Leathem [1901] AC 495 at 537 per Lord Lindley. For the tort of deceit (which can be committed either intentionally or recklessly: Derry v Peek (1888) 14 App Cas 337) contributory negligence of a gullible plaintiff, or of a plaintiff who negligently failed to check the accuracy of the statement made, is not a defence: Central Railway Co of Venezuelan v Kisch (1867) LR 2 HL 99. However contributory negligence can be a defence to the unintended consequences of wilful wrongdoing: Butterfield v Forrester (1809) 11 East 60, 103 ER 926. It may also be a defence to an action against a master for the wilful tort of his servant, and to an action based on strict liability where the loss was caused through the wilful tort of the defendant’s servant: Bradley v Waterhouse (1828) M & M 154, 173 ER 1114, 3 Car & P 318, 172 ER 438. The situation may be different where the plaintiff actually intends to bring the damage on himself, rather than merely being careless of his own interests. A person whose goods are stolen after he or she has been careless for their safety can nonetheless recover them, or their value, from a bona fide purchaser from the thief: Scholfield v Earl of Londesborough [1896] AC 514 at 522 (an intentional tort in that proof of an action or actions by the defendant showing an intention to assert dominion over the goods would be an essential part of the plaintiff's case). These examples by no means exhaust the complexity of the topic. More recent authority continues to assert that there is no invariable rule about whether contributory negligence is a defence to a tort based on the wilful action of the defendant: State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 at [104]-[106], 522-523; Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [25]; Lane v Holloway (1968) 1 QB 379 at 392-393; Dura Constructions (Aust) Pty Ltd v Dovigi [2004] VSC 252 at [67]-[68]; Australian Guarantee Corporation Ltd v Commissioners of the State Bank of Victoria [1989] VR 617 at 637-638; P Vout (ed), Torts: The Laws of Australia , 2nd ed (2007) Thomson Legal & Regulatory Group par [33.9 .600]; J G Fleming, The Law of Torts , 9th ed (1998) LBC Information Services at 316 ff; F Trindale & P Cane The Law of Torts in Australia , 4th ed (2007) Oxford University Press at 688-689; Clerk & Lindsell on Torts , 19th ed (2006) Sweet & Maxwell par [3.36]-[3.49].

The relevant point, for present purposes, is that contributory negligence is sometimes available at common law in relation to an action to recover damages for injury, loss, damage or destruction caused by a wilful act of the defendant, and sometimes it is not.

The meaning of “default” in section 11 can be ascertained when one recognises that the elements of the phrase “without proof of intention, negligence or other cause of action” in section 11 are echoed by the phrase “caused by the wilful act, negligence or default” . So understood, “default” is a cause of action other than one requiring intention or negligence. Section 11 is quite unspecific about the nature of that cause of action, and so it is impossible to say whether a defence of contributory negligence would apply to it or not.

The wording of section 11 is quite indifferent as to whether the statutory cause of action it creates should operate “as if” the injury, etc had been caused by a wilful act, had been caused by negligence, or had been caused by “default” . I see no reason for Parliament to have intended that either a plaintiff, or a defendant, ought be in a position to choose whichever one of “wilful act, negligence or default” might suit their interests – the meaning of a statutory provision does not change with the choice of any individual who might seek to apply it. Rather, the requirement of section 11 that the action for damages that it creates should operate as if the injury, etc, had been caused by the wilful act negligence or default of the defendant or defendants requires the action under section 11 to have those features that are common to actions to recover damages for an injury, etc, caused by the wilful act, negligence or default of the defendant or defendants.

Section 79 Judiciary Act is in that situation not sufficient to enable a defence of contributory negligence to become available in an action under section 11. The wording of section 11 is inadequate to perform the task of making contributory negligence “applicable” as a defence to all actions for damages under DAA .

An alternative submission is that contributory negligence is available in this particular action. The argument is that the claim in the present case is a claim for damages for harm resulting from negligence, that is brought under statute, and thus falls within section 5A Civil Liability Act . As I understand the argument of ACQ and Aircair, it is that the definition of “negligence” in section 5 Civil Liability Act makes clear that in section 5A the word “negligence” does not refer to the tort of negligence, but to a mode of human behaviour. ACQ and Aircair submit that, even though the cause of action sued on is a statutory cause of action under section 11, it is still a claim for damages for harm resulting from negligence, ie, a claim for damages for harm resulting from Mr Stubbs’ failure to exercise reasonable care and skill in flying the plane, or perhaps a claim for damages for harm resulting from NorthPower’s breach of its duty of care to Mr Cook, and therefore the provisions of the Civil Liability Act relating to contributory negligence apply to that claim. They draw attention to the remarks of Ipp JA (with whom Giles and Tobias JJA agreed) in Booksan Pty Ltd v Wehbe [2006] NSWCA 3; (2006) Aust Torts Reports ¶81-830 at [166]-[167]; “Section 5A, by its express words, makes Pt 1A of the Civil Liability Act applicable to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. The effect of this provision must be seen in the context of the repeal of the 1945 Act and s 7(1) of the 1965 Act resulting in contributory negligence once more becoming a defence to a claim for breach of statutory duty. In my opinion the consequences of the repeal of the 1945 Act and s 7(1) of the 1965 Act, and the insertion of s 5A into the Civil Liability Act , are clear. Irrespective of how a claim is formulated, if — in substance — it is a claim for damages for harm resulting from negligence, a defence of contributory negligence may be raised to that claim even if it is based on a breach of statutory duty. Division 8 of Pt 1A of the Civil Liability Act (which sets out principles applicable to contributory negligence) will then apply to that defence.”

Ipp JA’s reference to “the repeal of the 1945 Act” in that passage relates to the way in which contributory negligence had once been a defence at common law to a claim for a tort of breach of statutory duty: Piro v W Foster & Co Ltd [1943] HCA 32; (1943) 68 CLR 313. The effect of Piro in New South Wales was reversed by the Statutory Duties (Contributory Negligence) Act 1945 (“ the 1945 Act ”). The 1945 Act was itself repealed by the Civil Liability Amendment (Personal Responsibility) Act 2002 . That repeal had the effect of reinstating the availability of contributory negligence as a defence to an action for the tort of breach of statutory duty. However, as reinstated it was subject to the provisions of the 1965 Act , under which contributory negligence was no longer a total defence, but led to apportionment. Booksan v Wehbe held that the effect of Part 1A of the Civil Liability Act was to introduce the defence of contributory negligence for breaches of statutory duties.

However, Booksan v Wehbe also went on to hold, at [172]-[173] that the retrospective effect given by Clause 6, of Part 3 of Schedule 1 of the Civil Liability Act to the amendments made by the 2002 Amending Act applied only to the amendments that were made by the Civil Liability Amendment (Personal Responsibility) Act to the Civil Liability Act itself, and did not apply to the repeal of the 1945 Act . Thus the provision in the 2002 Amending Act that made that repeal should be interpreted having regard to ss 30(1)(c) and 30(1)(e) Interpretation Act 1987 . As so construed, contributory negligence is only available as a defence to causes of action for beach of statutory duty that accrued after the Civil Liability Amendment (Personal Responsibility) Act took effect on 6 December 2002.

As Mr Cook’s cause of action under section 11 DAA arose on the day he was injured, the repeal of the Contributory Negligence (Statutory Duties) Act 1945 would not apply to his cause of action, if it were an action for breach of statutory duty.

But there is a question about whether the cause of action arising under section 11 DAA should be regarded as giving rise to a tort of breach of statutory duty at all. The trial judge said that it was not a cause of action for breach of statutory duty, but rather an action that arises by application of the statute. As to that, see Proctor v Jetway Aviation [1982] 2 NSWLR 264 at 276 per Cross J (a decision reversed by the Court of Appeal at [1984] 1 NSWLR 166, but without commenting on this passage of Cross J’s judgment), and as to the tort of breach of statutory duty see generally J C Campbell, “Contribution, Contributory Negligence and Section 52 of the Trade Practices Act” (1993) 67 ALR 87 at 93-108, 177-185. The essence of an action for breach of statutory duty is expressed in the terms in which the 1945 Act repealed contributory negligence as a defence to actions for personal injury based on such a cause of action: “… an action for damages for that injury founded on a breach of a statutory duty imposed on the defendant for the benefit of a class of persons of which the person so injured was a member at the time the injury was sustained.”

That definition does not apply to DAA . DAA does not impose a statutory duty on anyone to act in any particular way. All that it says is that damages are recoverable by a particular type of person, from a particular type of person, if events of a particular description happen. As well, given the scope of section 10(1)(d) DAA , there is room for argument (which I need not resolve) about whether DAA operates “for the benefit of a class of persons” . In my view the trial judge was right in holding that an action under section 11 was not a cause of action for breach of statutory duty. Thus, the remarks of Ipp JA quoted above from Booksan v Wehbe do not bear upon an action for damages under DAA .

The balance of authority supports the view that the action for damages conferred by section 82 Trade Practices Act is not an action in tort, notwithstanding that it expressly confers a remedy for a breach of a standard of action that the Trade Practices Act itself requires to be adhered to: Bialkower v Acohs Pty Ltd (1998) 83 FCR 1 at 11; Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 at [17] 503-504, [38] 510, [40] 512; Hampic Pty Ltd v Adams [1999] NSWCA 455 at [61]. Until Part VIAA was introduced into the Trade Practices Act in 2004, the action for damages conferred by section 82 of that Act was not one in which damages could be reduced if the applicant’s conduct had contributed to the loss or damage: I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109. Similarly, when the action for damages under DAA is not for the breach of the tort of statutory duty, but is the enforcement of an expressly conferred statutory right of action, circumstances that fell within section 10(1) DAA would not be a “wrong” within the meaning of section 8(a) of the 1965 Act because they would not involve an act or omission that gave rise to a liability in tort. Nor would there be a liability in respect of which a defence of contributory negligence was available at common law. The wording of section 8(b) of the 1965 Act clearly does not apply to the action under DAA . Thus, such an action is not a “wrong” within the meaning of the 1965 Act .

Indeed, when DAA does not require any particular standard of action to be adhered to, the situation is a fortiori that covering the Trade Practices Act .

If it were the case that the damages Mr Cook claimed were for damages for harm resulting from Mr Stubbs’ failure to exercise reasonable care and skill in flying the plane, or resulting from NorthPower’s breach of duty, the cause of action under DAA would fall within section 5A(1) Civil Liability Act . However, having fallen there, section 5R and 5S would have no work to do in relation to it, because section 5R and 5S presuppose that the 1965 Act applies to the type of claims with which they deal. Thus, even in the hypothetical situation I am considering, a defence of contributory negligence would not be available in relation to an action under DAA .

In those circumstances, it is not necessary to consider whether the claim is actually a claim for damages for harm resulting from Mr Stubbs’ failure to exercise reasonable care and skill in flying the plane. ACQ and Aircair argued forcefully that no want of care and skill on the part of Mr Stubbs had been proved. On the view I take, it is unnecessary to enter into that factual question.

In Southgate , Brownie J held that the 1965 Act applied to an action for damages that was brought under the 1952 NSW Act . At that time, the provision of the 1965 Act that governed the availability of contributory negligence was worded differently to its present version. Then, section 10(1) of the 1965 Act stated the circumstance in which apportionment could occur as being: "Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons …" As well there was a definition of "fault" which differed from the present definition of "wrong" .

Brownie J said, at 190-191: "… it seems to me that the liability of an aircraft owner under the Damage by Aircraft Act , s 2(2), and its equivalents, based as it is solely upon the fact that the owner's aircraft, whilst in flight, caused damage to the plaintiff, is “fault”, as defined in the Law Reform (Miscellaneous Provisions) Act 1965, s 9 (and its equivalents), viz “negligence, or other act or omission which gives rise to a liability in tort or would, apart from this Part, give rise to the defence of contributory negligence but does not mean or include a breach of statutory duty”. The liability under s 2(2) is not in my view a liability in respect of a “breach of statutory duty”. It is rather a liability imposed by the statute in the factual circumstances I have just mentioned.”

That reasoning is, with respect, correct. The then definition of “fault” was satisfied if there was an act or omission that would, apart from “this Part” , give rise to the defence of contributory negligence. The terms of the 1952 NSW Act expressly make contributory negligence a defence. Thus, if an act or omission of a plaintiff had contributed to that plaintiff's own injury, that act or omission of the plaintiff fell within the definition of “fault” as it then existed. As well, the act or omission of the defendant, that contributed along with the act or omission of the plaintiff to the plaintiff’s eventual injury, was an “other act or omission which … would, apart from this Part, give rise to the defence of contributory negligence”, because contributory negligence requires the act or omission of both plaintiff and defendant to make a causal contribution to the eventual injury. In this way, there was “fault” of both the plaintiff and the defendant, and so the statutory apportionment could operate in Southgate . The reasons why I conclude that contributory negligence is not a defence to an action under DAA have as important elements the fact that DAA does not expressly make contributory negligence a defence, and the present definition of “wrong” in the 1965 Act , both matters concerning which the legislation I am considering differs from that considered by Brownie J. Voluntary Assumption of Risk

Because of the provisions of 151O Workers Compensation Act 1987 , a defence of voluntary assumption of risk was not available in Mr Cook’s action for damages against NorthPower. The trial judge assumed that a defence of voluntary assumption of risk was available to Aircair and ACQ, but held that, on the facts that defence was not made out. He did not give any separate consideration to how such an alleged defence might operate concerning the tort of negligence, and concerning the statutory liability under DAA .

The submissions of ACQ and Aircair on the appeal likewise did not differentiate between how an alleged defence of voluntary assumption of risk might operate in relation to the action for the tort of negligence, and in relation to the statutory liability under DAA . Rather, the submissions dealt with the trial judge’s reasoning on this topic on his Honour’s own terms.

When I have held that Aircair owes no duty of care to Mr Cook, and hence that no tort of negligence was committed by it, voluntary assumption of risk could enter into the picture only if it were a defence to DAA .

When DAA does not create a liability in tort, and says nothing in its terms about voluntary assumption of risk being a defence to the action, I have some difficulty in seeing how, as a matter of law, it could even possibly be a defence in a way that was separate to an inquiry into whether the damage was caused by one of the events in section 10(1)(a)-(d). However, no submissions were addressed, on the appeal, to this matter of law. Thus I, likewise, shall simply consider whether, if voluntary assumption of risk were a defence to the action under DAA , the conditions for its application apply here. I make clear that by taking this course I give no encouragement whatever to the notion that voluntary assumption of risk actually is a defence to that action.

In Monie v Commonwealth of Australia [2007] NSWCA 230 at [74]-[76] I said (with the assent of Mason P and Beazley JA): “The justification for the defence of voluntary assumption of risk was explained by Lord Herschell in Smith v Baker & Sons [1891] AC 325 at 360 as being: One who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong. Voluntary assumption of a risk involves consenting to the particular thing being done which would involve the risk: Smith v Baker & Sons (at 338). Mere knowledge that a risk exists is not the same as consenting to the risk: Smith v Baker & Sons (at 337, 362); Letang v Ottawa Electric Railway Co [1926] AC 725 at 730. As well, before the defence applies, "the whole risk" must be voluntarily incurred by the plaintiff: Smith v Baker & Sons (at 337). "There must be an assent to undertake the risk with the full appreciation of its extent": Smith v Baker & Sons (at 369 per Lord Morris). The defence applies only when " … the plaintiff freely and voluntary, with full knowledge of the nature and extent of the risk he ran, … agreed to incur it": per Wills J, Osborne v London and North Western Railway Co (1888) 21 QBD 220 at 224, approved in Letang v Ottawa Electric Railway Co (at 731). In Roggenkamp v Bennett (1950) 80 CLR 292 at 300 a majority of the High Court (McTiernan and Williams JJ), quoting Halsbury’s Laws of England, 2nd ed, vol 23, at pp 716–718, said that before the defence applied: … the plaintiff must be shown not only to have perceived the existence of the danger, for this alone would be insufficient, but also that he fully appreciated it and voluntary accepted the risk. In Randwick City Council v Muzic [2006] NSWCA 66 at [48], Hunt AJA (with whom Handley and Ipp JJA agreed) said that before a defence of voluntary assumption of risk applies, a defendant: … must establish that the plaintiff perceived the existence of the danger, that he fully appreciated it and that he voluntarily agreed to accept the risk: Roggenkamp v Bennett (1950) 80 CLR 292 per McTiernan & Williams JJ (at 300), Hadland v Council of the City of Blacktown (Court of Appeal, 21 May 1997 unreported) per Clarke AJA (Grove AJA agreeing) and Canterbury Municipal Council v Taylor [2002] NSWCA 24 per Ipp AJA (Spigelman CJ & Mathews AJA agreeing) at [141]–[148].””

Applying those principles to the present case, one particular risk of which Mr Cook was well aware was of the danger of electrocution if he came within one metre of the conductor. However, he did not assent to coming that close to the conductor – he came to be there by inadvertence. As the facts of the case sadly show, Mr Cook also underwent a risk that in entering the field, with the extremely difficult conditions that it provided, he might by inadvertence get too close to the conductor. I am not satisfied that he assented to undertaking that risk with the full appreciation of its extent.

In my view, even if as a matter of law it were available, the defence of voluntary assumption of risk would fail. Negligence of NorthPower

At the trial Mr Menzies QC articulated the plaintiff’s case against NorthPower as follows: “… the only safe way of dealing with the circumstances which arose here was to turn the power off first. Why? Because of the dangers that were inherent in [not doing so] So far as the clearance distances are concerned, it’s a matter of no concern to us that it flashes only a relatively short distance, for this reason: the flaw in the system which said “maintain a distance of a metre” was that it failed to take into account that this could inadvertently be breached in circumstances short of negligence; and certainly in circumstances of negligence … [W]hat they should have done was have a system that said this: “In a circumstance where you might come too close to the line, for goodness’ sake, you are not to go on the site until you turn the power off first.” It’s absolutely perfectly plain and, whatever view one takes of the evidence, that’s not what any of them were told or were ever told. The second point about it is that, if one does go onto a site, just remember that the clearance of a metre can easily be compromised by a fall or a stumble, even if you’re a metre away.”

Mr Menzies’ reference to “it flashes only a relatively short distance” was to uncontested evidence from Professor Stillman that flashover could occur only if a person or object came within 60mm of a 22kv conductor. Thus, requiring a clearance distance of 1 metre in itself provided some margin for error.

The claim that Mr Cook brought against NorthPower was one concerning which damages would be assessed under the modified common law provisions contained in Division 3 of Part 5 of the Workers Compensation Act . It is common ground that therefore the whole of the Civil Liability Act does not apply to it: section 3B(1)(f) Civil Liability Act .

The trial judge found that NorthPower was negligent in two respects. The first was by failing to isolate the line remotely prior to the arrival of Mr Buddee and Mr Cook. The second was by inadequate training of Mr Cook concerning maintaining clearances. Failure to Isolate the Line

The trial judge’s reasoning concerning failure to remotely isolate the line prior to the arrival of Mr Buddee and Mr Cook was as follows: “… [A]fter the conductor was dislodged, it was swinging about across the field: (T 196.29). It was difficult to see in the particular conditions; there were people in the vicinity who were “ducking under the downed conductor”; and even Mr Mackay had to be warned away by Mr Buddee. Mr Cartwright rang Mr Mackay, who in turn rang NorthPower to inform it the line was down. There was no evidence as to what NorthPower was or was not otherwise aware. The risk of harm from the energised line swaying across the field at head height was clearly foreseeable. In my view it would not have been a disproportionate response for NorthPower to have remotely isolated the conductor from Port Macquarie, until the arrival of the two linesmen it dispatched to assess the situation. The line, or some part of it, was always going to need to be isolated. Any relative increase in time out or customers affected by remote isolation was in my view the required, proportionate, response to the danger.”

Professor Stillman expressed a view in his report that NorthPower should have isolated the line remotely. He expressed the view in the following way: “It is a basic and inviolable principle in the operation of an electric power system, no matter the operational voltage, that an overhead power line once energised and made live remains and is treated as “live” until made “dead” by being isolated or disconnected from all possible other sources of electricity and is visibly earthed at the point of isolation. Only when a line is considered safe having been isolated and earthed, then the procedure is for those who are to work on the line to observe and to know there is an open point and then to sign on to an access permit and on arriving at the work site to put in place visual working earths. Based on the above principle it would have been expected that the instructions received by Buddee and Cook when they were sent to attend the fault was that system control would have de-activated the line by supervisory remote control and informed them so. This at least would have given some measure of safety to any one of the public, such as farm workers, who may have been in or near the line conductor. The next step would have been to direct Buddee and Cook to the isolating links located 7 kms from the fault site, where an open point would have been established and indicative earths placed on the load side conductors. None of this procedure was followed until after the accident. If this procedure had been followed Cook would not have been placed at risk and subsequent injury.”

He concluded: “The supervisory procedure adopted by NorthPower once they were informed of the line being down, breached the basic operational principle of deactivating, isolating and earthing prior to any inspection and repair. NorthPower should have isolated the line by remote supervisory control as a simple precaution in respect of the safety of local farm personnel and then directed Buddee and Cook to open, and isolate and earth the line at the links, rather than having it done after the event. If this procedure had been followed Cook would not have been placed at risk and subsequent injury.”

In cross-examination Professor Stillman had put to him a hypothetical situation in which an electricity authority received: “… a report of a line down in a cotton field without any suggestion of danger to any person, okay? Nobody is threatened, there are no workers in the field and so on. It’s not threatening the farmhouse or the barn or the livestock.”

Professor Stillman agreed that, faced with that situation, the appropriate course for the electricity authority to take was to send out an experienced person to check the situation, and that one would not isolate the line before the experienced person got there. However, he saw the difference between that situation and that of the present case as being that in the present case: “… it was reported by one of the personnel employed by Milo Foods. So consequently I came to the conclusion that there would be other people in the area and as there was, there was Mr James, the person involved with the aircraft people and Mr Cartwright. And so I considered that there were people at risk.”

He denied that concluding that people must be at risk from the fact that a man from the farm phoned in involved an unjustified leap, saying “no, it’s based on my own experience” . When Professor Stillman’s experience covered actually working on power distribution networks, and holding a senior managerial position in an electricity distribution authority, as well as impressive academic qualifications in electrical engineering, I find that response persuasive.

Professor Stillman’s cross-examination continued: “Q. The isolating of the line in that circumstance would be to protect the Milo man and his co-workers. Correct? A. Correct. Q. Wouldn’t be aimed at protecting the Country Energy employees going out to check the line, would it? A. Well, it – any person that -- Q. It may have that effect. A. Its ultimate effect would be to protect anybody that came within the vicinity of the live line. Q. Yes, but if there was no concern about the danger of people on the ground when the report comes in, then as I think you’ve already agreed, it would be appropriate to send out your employees to see what’s going on. A. I agree.”

Professor Stillman agreed that the qualifications of Mr Cook were such that he was an appropriate man for an electricity authority to send to deal with the situation.

Mr Cook himself accepted in cross-examination that it would be “ridiculous” that if every time there was a call about a fault in a line, the whole line was switched off. He accepted that if electricity workers arrived at a site and found that it created a danger, it was open to them to use their radio contact with Port Macquarie to ask for the line to be switched off remotely.

From the evidence I have quoted it can be seen that in Professor Stillman’s view it was the presence of the farm workers that made the difference between whether NorthPower should have deactivated the line before Mr Cook and Mr Buddee arrived, and whether it could have left the line alive until Mr Cook and Mr Buddee had the chance to assess the situation. It is as though, in response to a question “bearing in mind all the people who NorthPower had reason to believe could be affected by the line remaining live, what should NorthPower have done about de-activating the line” that Professor Stillman gave an answer “Northpower should have de-activated it” . But that is not the right question to ask in deciding whether, by failing to de-activate the line, NorthPower breached its undoubted duty to take reasonable care for the safety of its employee Mr Cook. That failure to isolate the line might have been a breach of NorthPower’s duty to farm workers in the field, does not answer the question of whether it was a breach of NorthPower’s duty to Mr Cook, given the special training and experience that Mr Cook had. If NorthPower had reason to believe that Mr Cook was properly trained and experienced, and thus well able to assess for himself how to deal with any danger resulting from the wire being live when he arrived at the site, reasoning similar to that in O’Connor would lead to the conclusion that there was no breach of duty to Mr Cook in failing to isolate the power before he arrived. I therefore turn to the question of whether his training and experience was adequate. Training

The trial judge found that the evidence was “motley” concerning training about how linesmen were to work in the field. He found: “Linesmen were trained to maintain clearances from live conductors in all circumstances. They were also trained to isolate and earth conductors before actually working on them. There was also a system for completion of a written risk assessment to be completed before starting work, but this was only to be finalised after isolation and earthing. Less clear, however, were the requirements involved in approaching live conductors and assessing risk prior to isolation, other than the clearance rule. And missing altogether was evidence as to the criteria to be applied as to when to isolate to a live conductor and in what circumstances.”

The trial judge’s finding concerning inadequate training was (at [53]): “The training received by Mr Cook as to maintaining clearances was ambiguous. On the one hand he was acutely aware of the requirement to maintain a minimum clearance of one metre before working on a line until it was isolated and earthed. On the other hand there was no clear procedure by which he had been trained to keep well clear of the line before carrying out an assessment of the work required. Nor had he been trained as to how the clearance was to be calculated or observed. In adverse conditions, such as were present here, not very much was required for that one metre clearance to be compromised. Inadvertence, through fatigue, tripping or falling, or misjudgement in conditions of poor visibility, were all reasonably foreseeable concomitants of establishing, through training and instruction, a safe clearance, and how to apply it. The requirement should have been to require linesmen in these circumstances to stay well clear of the line until isolated, sufficiently far away to take account of inadvertence.”

Mr Cook had never been given any specific instructions by his employer about how to deal with muddy or wet conditions. In cross-examination he said: “Q. You didn’t actually need any, did you? I mean, you knew that you take into account mud. A. Yes. Q. You knew that you take into account wet conditions. A. Yes. Q. And your employer giving you any warning along that line was something you already knew. Do you agree? A. Yes.”

Those questions were quite general, and imprecise, and leave unexplored whether he knew what he should do, in circumstances like those in the field on the day of the accident to “take into account” mud, or wet conditions. The questions did not address the other hazard that Mr Cook would have encountered, just as Mr Hyde encountered it (para [58] above), that of moving through cotton bushes at least knee-high on which one can get snagged on the roots and stalks. I would not base a finding of no breach of duty on Mr Cook’s answers to the questions.

The rule that had been drilled into Mr Cook was that he should maintain a minimum one-metre clearance from a conductor of this type. The trial judge’s conclusion about the mechanism of Mr Cook’s fall (para [64] above) is to the effect that, so far as Mr Cook was making deliberate movements, he maintained at least a one metre clearance.

NorthPower’s own assessment of Mr Cook’s accident led it to issue a document to all its relevant staff, that explicitly stated that in some circumstances the minimum may not be enough (para [63] above). The particular circumstances that it identified in that document, of the conductor moving a bit in the wind, or having one strand spring out, so that the minimum was not enough, are not shown to have been operative in the present case. Indeed, the proper conclusion from the evidence is that, had Mr Cook maintained a clearance of one metre from the line, no harm would have befallen him.

I have some difficulty in understanding just what a “clear procedure by which … to keep well clear of the line” would amount to, or what training in “how the clearance was to be calculated or observed” could consist in. No example of such a procedure, or such training, was given by the judge, or provided in the evidence, or in submissions. It is not suggested that the one metre distance could or should be measured – placing a measuring device on or near the line would itself involve breaching the clearance. Necessarily, the clearance is to be ascertained by estimation, based on observations in the field, not by measurement.

Mr Cook was well aware of the potential danger that the line posed. The clearance was always expressed in terms of a minimum distance that should be maintained from the line. In my view, the danger of the clearance being breached if a linesman tripped and fell, whether because of the mud, or through being tripped by a cotton bush branch or root, is an obvious one. The particular conditions that Mr Cook encountered in the field on the day were most unusually arduous ones. However in my view it is reasonable for an employer to leave to the man in the field the task of assessment of such conditions, and what the appropriate response to them should be to ensure that one stayed at least a metre from the line.

Mr Cook was clearly aware that his first priority was always expected to be his own safety. If, on walking some distance into the cotton field he found that the going was too difficult for him to be confident about maintaining the clearance, or if the conditions were such that he could not get and keep a clear view of where the line was, it was always an available alternative for him to give up, return to his vehicle and wait for Mr Buddee’s return, or if there was some particular urgency to get the repair job finished (as there was not in the present case) to contact Port Macquarie by radio and ask to have the power turned off remotely.

In my view NorthPower was not in breach of its duty of care to Mr Cook through providing him with inadequate training. And, when the employer had no cause to believe that Mr Cook was inadequately trained or insufficiently experienced, neither was NorthPower in breach of its duty of care by failing to isolate the line remotely before the arrival of Mr Cook.

In these circumstances, the judgment against NorthPower cannot stand. NorthPower’s entitlement to any contribution towards any such judgment likewise falls away, and it is unnecessary to consider the extent to which Mr Cook’s injury was caused by his own contributory negligence. There is also no question of either ACQ or Aircair being able to claim contribution from NorthPower (either under the 1946 Act or under the general law) on the basis that NorthPower has a liability to pay the same damages as ACQ and Aircair are liable to pay. When there is no question of contribution being payable by NorthPower, no question arises of whether the damages that Mr Cook can recover from ACQ and Aircair ought be reduced under the provisions of section 151Z(2)(c) Workers Compensation Act . Orders

The result of the reasoning so far is that Mr Cook retains his judgments against ACQ and Aircair, but is not entitled to a judgment against NorthPower. When NorthPower has no liability to Mr Cook, it cannot retain its judgment against Aircair, as NorthPower’s judgment against Aircair was one requiring Aircair to make contribution to the liability of NorthPower to Mr Cook.

I mentioned at the outset of this judgment that there are four appeals involved in this matter. An appeal was lodged by each of ACQ, Aircair, NorthPower, and Mr Cook. Each of those appeals was from the one judgment in the court below. That judgment in the court below had been given in a single set of proceedings, in which Mr Cook sued ACQ, Aircair, and NorthPower. There were cross-claims in those proceedings, in which ACQ and Aircair sought contribution from NorthPower, and vice versa.

Notwithstanding that there were four separate appeals, in substance the hearing of the appeals was a single proceeding. ACQ and Aircair have at all times acted by the one set of solicitors and counsel. In my preliminary view, it may be appropriate to make costs orders concerning the appeals on a basis that aggregates the costs of the four separate appeals.

It is also my preliminary view that, on the assumption that there are no offers of compromise or Calderbank letters, and nothing else that is not contained in the appeal books that might influence a proper order as to costs, it may be appropriate for the costs of the combined appeals, and of the proceedings in the court below, to follow each respective event.

There were numerous issues raised and argued in the appeals of ACQ and Aircair that it was not necessary to decide. Those are the issues identified as (vi)-(x) inclusive in para [23] above. When the reason for it not being necessary to decide those issues is that all those issues depended upon NorthPower having a liability to Mr Cook, when NorthPower succeeded in its appeal against there being any such liability (an appeal to which Aircair, as well as Mr Cook, were respondents) I at present see no reason why the cost of arguing those issues should not be treated as part of the general costs of the combined appeal.

Likewise, it was not necessary to address issue (xii) identified in para [23] above, because of NorthPower succeeding in its appeal against having a liability to Mr Cook. Again, my preliminary view is that the costs of that issue might properly be disposed of as part of the general costs of the combined appeal.

As the costs orders have some complexity, and the parties have not had the opportunity to address what might be the appropriate orders in light of the findings that the Court has made, the preferable course is not to make costs orders at this stage. Rather, the parties should be given the opportunity of agreeing, or alternatively of formulating the costs orders each party submits is appropriate, in light of the findings of the Court so far. If the parties are unable to agree on the appropriate orders, I shall direct the exchange of written submissions concerning costs. I do not at present envisage that a further oral hearing concerning costs would be necessary, but if any party is of a different view, I shall reserve liberty to each party to apply, at its own risk as to costs, for a further oral hearing on the question of costs.

The orders I propose are: Appeals of ACQ and Aircair (40302/07 and 40303/07) Appeal dismissed, save in so far as costs orders may hereafter be made. NorthPower Appeal (40454/07) (1) Appeal allowed. (2) Set aside the verdict and judgment in favour of Mr Cook against Country Energy in the court below. (3) In lieu thereof, enter a verdict and judgment in favour of Country Energy against Mr Cook. (4) Set aside the verdict and judgment in favour of Country Energy against Aircair Moree, namely, of 50% contribution by Aircair Moree to Country Energy in the court below. Mr Cook’s Appeal (40367/07) Appeal dismissed, save in so far as costs orders may hereafter be made. In All Appeals (1) Direct all parties to file Short Minutes of any agreed orders concerning the costs of proceedings 40302/07, 40303/07, 40454/07 and 40307/07 in this Court (“ the Four Appeals ”) and of the proceedings in the court below, within 28 days of the date of delivery of these reasons for judgment. (2) In the event that no such agreement is reached, each party to serve on each other party written submissions identifying the costs orders in the Four Appeals, and in the court below, for which that party contends, and its reasons for those orders, within 28 days of the date of delivery of these reasons for judgment. Four copies of any such submissions are to be provided to the Associate to Campbell JA by the same date. (3) Direct any party desirous of responding to any such submission to serve a written response on all the other parties to the Four Appeals within 49 days of the date of delivery of these reasons for judgment. Four copies of any such response are to be provided to the Associate to Campbell JA by the same date. (4) Reserve liberty to any party to the Four Appeals to apply, at its own risk as to costs, for a further oral hearing concerning the appropriate costs orders.