Masterwood Pty. Ltd. v Far North Queensland Electricity Board
[1997] QCA 262
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- Unreported Judgment
- Appeal Determined (QCA)
- Masterwood Pty. Ltd. v Far North Queensland Electricity Board[1997] QCA 262
- Add to List
Masterwood Pty. Ltd. v Far North Queensland Electricity Board[1997] QCA 262
Reported at [1999] 1 Qd R 345
Masterwood Pty. Ltd. v Far North Queensland Electricity Board[1997] QCA 262
Reported at [1999] 1 Qd R 345
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 4049 of 1996
Brisbane
[Masterwood P/L v. Far North Qld. Electricity Board]
BETWEEN:
MASTERWOOD PTY. LTD.
(ACN 054 890 550)
(Plaintiff) Appellant
AND:
FAR NORTH QUEENSLAND ELECTRICITY BOARD
(Defendant) Respondent
Fitzgerald P.
McPherson J.A.
Fryberg J.
Judgment delivered 29 August 1997
Separate reasons for judgment of each member of the Court, all allowing the appeal. Fitzgerald P. dissenting in part as to the orders; McPherson J.A. and Fryberg J. concurring as to the orders made.
APPEAL ALLOWED. JUDGMENT FOR THE RESPONDENT/DEFENDANT BELOW SET ASIDE. THE ACTION IS REMITTED TO THE DISTRICT COURT. THE PLAINTIFF HAS LEAVE TO AMEND THE PLAINT WITHIN 21 DAYS OF THE DATE OF THIS JUDGMENT IN RESPECT OF MATTERS ARISING FROM THE REASONS FOR JUDGMENT IN THIS APPEAL. THE DEFENDANT HAS LEAVE TO AMEND ITS DEFENCE WITHIN 14 DAYS OF THE DELIVERY OF THE AMENDED PLAINT. RESPONDENT IS TO PAY APPELLANT’S TAXED COSTS OF APPEAL. COSTS IN THE DISTRICT COURT TO BE COSTS IN THE CAUSE.
CATCHWORDS: GENERAL CIVIL APPEAL - Whether statutory authority’s statutory exemption from liability for loss includes omissions of the authority - Electricity Act 1976 ss. 122, 129, 200, 219 - Larkin v. Capricornia Electricity Board [1995] 1 Qd.R. 268 and Australian National Airlines Commission v. Newman (1987) 162 C.L.R. 466 considered.
Counsel: Mr J. Douglas Q.C. for the appellant
Mr P. O'Shea for the respondent
Solicitors: Myles Thompson & Co. for the appellant
Gadens Ridgeway for the respondent
Hearing Date: 19 February 1997
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 4049 of 1996
Brisbane
Before Fitzgerald P.
McPherson J.A.
Fryberg J.
[Masterwood P/L v. Far North Queensland Electricity Board]
BETWEEN:
MASTERWOOD PTY LTD
(A.C.N. 054 890 550)
(Plaintiff) Appellant
AND:
FAR NORTH QUEENSLAND ELECTRICITY BOARD
(Defendant) Respondent
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 29 August 1997
The circumstances giving rise to this appeal are set out in the reasons for judgment of McPherson J.A.
As I understand the position, it was not in dispute that the respondent erected and maintained the cables and supporting structures with which the appellant’s aircraft collided in the performance of its functions under the Electricity Act 1976.[1] While there is limited purpose to be served by attempting to translate a statutory provision expressed in ordinary English words into other words in an attempt to explain its meaning, such a process sometimes provides some insight into the reasoning process which leads to a particular conclusion. Broadly stated, s. 122 of the Electricity Act excluded the respondent from liability for anything done to give effect to the Act.
Irrespective of the form in which the appellant has cast its allegations of negligence, with one exception what was alleged against the respondent did not involve nonfeasance but misfeasance; in other words, not a failure to do what was required or authorised by the Act, but negligence in executing that work. Section 122 operates to exonerate the respondent from liability for such negligence.
The appellant’s allegation against the respondent which requires separate consideration is that alleged in paragraph 6(f) of the plaint. Of course, nothing said at this point in the litigation would relieve the appellant from the necessity of proving that the negligence alleged in that paragraph caused or contributed to the collision between the aeroplane and the cables and supporting structures if the action proceeds to trial.
It is not clear to me that the respondent would have been acting for the purposes of the Electricity Act if it had notified “the location of the cables and supporting structures to the appropriate mapping authorities so that they could be recorded on aerial charts”. It was not suggested that the Act required or authorised such activity; conversely, it was not doubted that the respondent had power to give such a notification. The power to erect the cables and their supporting structures no doubt included the incidental power - and the appellant says duty - “to notify the location of the cables and supporting structures to the appropriate mapping authorities so that they could be recorded on aerial charts”. Had the respondent done so, I am not persuaded that it would not have been acting “for the purposes of” the Electricity Act.
However, whereas all the other allegations of negligence made by the appellant relate directly to the erection of the cables and their supporting structures and allege negligent performance of that work, the notification of the location of the cables and supporting structures to the appropriate mapping authorities so that they could be recorded on aerial charts would have involved a separate activity, subsequent to and consequent on, the erection of the cables and their supporting structures. Failure to give such a notification did not involve negligence in the performance of the work of erecting the overhead cables and their supporting structures. It was a separate later omission. That being so, in my opinion, it is not protected by s. 122 of the Electricity Act.[2]
Accordingly, in my opinion, the appellant’s claim should not have been dismissed but all sub-paragraphs of paragraph 6 of the plaint except sub-paragraph 6(f) should have been struck out and the action tried on that limited basis.
The appeal should be allowed and the judgment for the respondent set aside. Sub-paragraphs (a) to (d) and (g) to (l) of paragraph 6 of the plaint should be struck out and the action remitted to the District Court. The respondent should pay the taxed costs of the appeal. All costs ordered to be paid by the appellant to the respondent in the District Court should be reserved to the District Court Judge who determines the appellant’s action against the respondent.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 4049 of 1996
Brisbane
Before Fitzgerald P.
McPherson J.A.
Fryberg J.
[Masterwood P/L v. Far North Qld. Electricity Board]
BETWEEN:
MASTERWOOD PTY. LTD.
(ACN 054 890 550)
(Plaintiff) Appellant
AND:
FAR NORTH QUEENSLAND ELECTRICITY BOARD
(Defendant) Respondent
REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered 29 August 1997
The plaintiff in this action sued the defendant Board for loss sustained when the plaintiff’s floatplane aircraft was damaged beyond repair as a result of collision with an electricity cable or cables[*], strung across the confluence of the Russell and Mulgrave Rivers. Paragraph 3 of the plaint alleges that the cable was erected and maintained by the defendant. According to other allegations in the plaint, the collision took place when the aircraft, piloted by an agent of the plaintiff, was making its final approach preparatory to landing on the Russell River. Paragraph 4 alleges that the cable was about 20m. above the water, with a span structure supporting the cable of approximately 400 metres.
When the action came to trial in the District Court at Cairns, counsel accepted that the defence of the Board raised a preliminary point of law that could conveniently be determined on the pleadings. The point of law arose from the allegation in para. 5 of the defence that:
“Further or in the alternative, the Defendant states that pursuant to section 122 of the Electricity Act 1976 (as amended), the Defendant cannot incur any liability in respect of the act or omissions alleged in paragraph 6 of the Plaint on account of anything done in connection with the erection, maintenance and use of the cables to carry electricity across the Russell and Mulgrave River confluence.”
Paragraph 6 of the plaint, to which that part of the defence refers, consists of an allegation that the collision by the aircraft with the cable was caused by the defendant’s negligence of which the following particulars are given:
“(a) Failure to erect, at any time prior to 29 November 1992, any or any adequate markers or lights on the overhead cable and their supporting structures.
- Failing to install any or any adequate aircraft warning marker on the overhead power cables in accordance with Australian Standard AS3891.1.
- Failing to erect any or any adequate marking panels on the structures supporting the overhead cables in accordance with Australian Standard AS3891.1.
- Failing to install any or any adequate high intensity obstacle lights in accordance with Australian standard AS3891.1.
- Failing to paint the structures supporting the overhead cables in accordance with Australian Standard AS3891.1.
- Failing to notify the location of the cables and supporting structures to the appropriate mapping authorities so that they could be recorded on aerial charts.
- Failing and continuing to fail to mark, paint or light the cables and supporting structures when the Defendant knew or ought to have known that aircraft flew in and about the location of the cables and their supporting structures and that their presence had not been marked on any aerial charts.
- Failing to adequately mark, paint or light the cables when it know (sic) or ought to have known that the river was used as a landing area for float planes.
- Failed generally to ensure that the cable or its supporting structures were erected, marked positioned in such a way as to ensure that it was not a hazard to aerial navigation generally.
- Failing to ensure that any warning signs were free of obscuring undergrowth.
- Failing to ensure that any warning signs were readily visible to aircraft pilots when it ought to have done so.
- Failing to ensure that any warning signs were readily visible to a vessel on the surface of the water when it ought to have done so.”
The learned District Court judge acceded to the application to have the matter determined as a preliminary point. He decided it in favour of the defendant, holding that s. 122 of the Electricity Act 1976 exempted the defendant from liability for the plaintiff’s loss. In reaching that decision, his Honour applied the decision of this Court in Larkin v. Capricornia Electricity Board [1995] 1 Qd.R. 268, and referred to the authorities mentioned in the reasons for that decision. Judgment in the action was deferred until the trial was completed.
By its pleading in the action the defendant had raised a counterclaim against the plaintiff for damage caused to its electricity cable, a power pole on the western bank of the River from which the cable was suspended, and associated equipment. Once the ruling on the preliminary point had been given, the counterclaim proceeded to trial. After hearing evidence, the learned judge dismissed the counterclaim on the ground that the defendant had failed to establish that, in colliding with the cable, the plaintiff or its pilot had acted negligently. At the conclusion of the trial, judgment was given for the defendant on the claim in the action, and for the plaintiff on the counterclaim.
It is the judgment in favour of the defendant that is now the subject of the appeal. Its outcome depends on the proper interpretation of s. 122(1) of the Electricity Act 1976 considered in the context of the facts pleaded. Section 122(1) is in the following terms:
“122. Indemnities. (1) No liability shall be incurred by an Electricity Board, the General Manager, any member of the Board, the secretary to or any other employee of the Board or any other person whomsoever acting under the direction of the Board on account of anything done for the purposes of this Act or done in good faith and purporting to be for the purposes of this Act.”
For present purposes the critical words are “on account of anything done for the purposes of this Act ...”. The plaintiff’s first submission is that the plaintiff’s claim was not within the ambit of the exemption from liability under s. 122(1) because, having regard to the particulars of negligence alleged in para. 6 of the plaint, the claim was founded on omissions on the part of the defendant, whereas s. 122(1) protects only an act or thing “done” for the purposes of the Act.
Whether the protection conferred by s. 122(1) extends to an omission was expressly left open in Larkin v. Capricornia Electricity Board [1995] 1 Qd.R. 268, 273. In my opinion, the question does not arise here. It seems likely that the particulars of negligence in para. 6 of the plaint were drawn with the provisions of s. 122(1) specifically in mind. Negligence, it is true, consists essentially of a failure or omission to take due care to avoid or to reduce the risk of foreseeable harm. It is, however, not possible to escape the reach of s. 122(1) by adroitly pleading negligence on the part of the Board as an omission or series of omissions, when in substance it is an act of commission that is complained of; for example, by alleging the negligent driving of a motor vehicle as an omission to drive with due care. In all but the comparatively rare instances of “pure” omission, liability in practice commonly arises from conduct that consists of a composite of both acts and omissions which, taken together, involve a departure from the standard of reasonable care. As was said by Coleridge J. of the defendant in Newton v. Ellis (1855) 5 El. & Bl. 115, “he is not sued for not putting up a light, but for the complex act”of digging a hole in the highway and leaving it unlighted.
What the defendant was sued for here was erecting and maintaining a cable across the river without giving low flying aircraft adequate warning of its presence. Despite the careful segregation in para. 3 of the plaint of the first part of that conduct from the particulars of negligence that follow in para. 6, it is that composite act that is the source of the alleged liability for which damages are claimed by the plaintiff. The case is not, and is incapable of being, put forward as one of pure omission. Had the defendant omitted to erect and maintain the cable altogether, the collision would never have occurred.
It is on this analysis of the wrongful act alleged that the appeal falls to be determined. For reasons explained by Kitto J. in Board of Fire Commissioners of New South Wales v. Ardouin (1961) 109 C.L.R. 105, 116, a statutory provision conferring immunity at the expense of private rights must be strictly construed; as his Honour said there, it is not to be “carried further than a jealous interpretation will allow”. Ardouin’s case was one in which the plaintiff was injured in a collision between his motorcycle and a fire engine owned by the defendant Board alleged to have been proceeding “with all speed” to the place of a fire with a view to extinguishing it. Putting out fires was the statutory function that the defendant was constituted to perform; but on demurrer by the plaintiff, the statutory exemption from liability in s. 46 of the relevant Act was held not to extend to the conduct or act alleged in the plaintiff’s declaration in the action.
Section 46 in that instance protected the defendant from liability for damage caused in the exercise of powers conferred by the Act. In interpreting it, his Honour considered (109 C.L.R. 105, 117) that the immunity it conferred:
“attaches in respect only of damage resulting from an act which, if it had not been negligent, would have been the very thing, or an integral part of or step in the very thing, which the provisions of the Act other than s. 46 or the by-laws gave power in the circumstances to do, as distinguished from an act which was merely incidental to, or done by the way in the course of, the exercise of a power.”
His Honour went on (109 C.L.R. 105, 118) to reject a submission that the defendant was within the statutory protection because, expressly or by implication, it had been granted power to drive on the street. No grant of power, his Honour said, was needed to drive a vehicle on a public street for the purposes of dealing with a fire, or for any other purpose.
The interpretation adopted by Kitto J. in Ardouin was applied by the High Court in Hudson v. Venderheld (1968) 118 C.L.R. 171 to the case of a collision between a car and a truck being driven in the course of employment by a Council employee enjoying a statutory exemption from liability “for anything done ... under this Act”. In driving along a public highway, it was said (118 C.L.R. 171, 175), the defendant “was doing something which the law - apart altogether from the Local Government Act - gave him a right to do”. It was true that in doing so he was acting on the instructions of a Council officer and in the course of his employment; “but that does not mean that what he was doing was being ‘done under’ the Local Government Act”. A similar conclusion was reached in Australian National Airlines Commission v. Newman (1987) 162 C.L.R. 466, where the defendant Commission was held liable for negligently failing to provide a safe system of work for an employee who was injured by slipping on a greasy patch on the floor of a kitchen maintained by the defendant. Conducting a kitchen was, as Mason C.J., Deane, Toohey and Gaudron JJ., accepted (162 C.L.R. 466, 471-472), something that the Commission was authorised to do as part of the process of carrying on its business; but it was not that conduct that the plaintiff employee was complaining about in her action. For the purpose of deciding whether or not the statutory exemption from liability for “anything done ... under this Act” was available, it was, their Honours held, necessary to look at “the particular act that caused the injury, ... instead of looking to the general statutory function ...” of the Commission (162 C.L.R. 466, 474).
In Newman’s case, Mason C.J., Deane, Toohey and Gaudron JJ. regarded the Commission’s negligent failure to provide safe access to a place of work, or to maintain the floor properly or in good order or condition, as the “act” on which attention must focus in determining whether it was “done under” the exempting provision in the statute. To regard all negligent or culpable acts or conduct as unauthorised, and consequently as not “done under” the Act in question, would deprive the statutory immunity of all or virtually all content. It does not appear to have been the intention of their Honours to sanction such an interpretation of the provisions. Brennan J. in his separate reasons in Newman’s case (162 C.L.R. 466, 475) said:
“When an act is done in intended or purported exercise of a statutory power or in intended or purported performance of a statutory function which authorizes the doing of an act of that kind, an action founded on the negligent doing of the act is an action ‘for’ something done or purportedly done under the Act. When an act is done in the course of an activity in which the Commission is engaged in intended or purported exercise of a statutory power or in intended or purported performance of a statutory function, an action founded on the negligent doing of the act is an action ‘arising out of’ something (i.e. the activity) done or purportedly done under the Act.”
His Honour concurred with the other members of the Court in holding that the statutory exemption had no application to the act in question and that the plaintiff employee was entitled to succeed. He said (162 C.L.R. 466, 477-478):
“In the present case, the Commission required no statutory authority to conduct a kitchen. That is an activity which, so far as appears, might lawfully be engaged in without statutory authority. The Commission was at liberty to perform the functions prescribed by s. 19(1) or by other provisions of the Act by whatever lawful means it chose, and no further grant of power or prescription of functions was needed to authorise the conduct of the kitchen ... Freedom under the common law to engage in conduct requires no grant of statutory power to confirm it, and a limitation provision which affects liability for things done or purportedly done ‘under’ the statute does not affect liability for things which are and can be done without reliance on a statutory power to do them. The conduct of the kitchen was something which the Commission had capacity to undertake without the grant of statutory authority to undertake it. It follows that an act committed in the course of conducting the kitchen is not an act arising out of something done or purportedly done under the Act for the purpose of s. 63(1).”
This analysis is, in my respectful opinion, directly supported by the two earlier decisions of the High Court in Board of Fire Commissioners v. Ardouin and Hudson v. Venderheld. I do not consider that in A.N.A. Commission v. Newman the other members of the High Court were intending to remove all negligent acts from the ambit of the statutory protection. In their reasons in that case their Honours referred specifically and with approval to the relevant passages from the judgment of Kitto J. and relied on them in arriving at their conclusion.
Section 122(1) of the Electricity Act speaks of “anything done for the purposes of this Act”. In cases of this kind, the first step is to identify the “act” or “thing” giving rise to the liability alleged. The result depends to some extent on the level of specificity used in identifying it. In the present case the critical “act” or thing on which attention must focus was, as I have said, the erection and maintenance of the cable across the river. It goes almost without saying that the erection and maintenance of the cable was an act or conduct undertaken by the defendant in the exercise of its statutory functions, powers and duties. Section 129 of the Electricity Act imposed on the defendant the power, function or duty of supplying electricity to consumers, and, for that purpose, of constructing, maintaining and controlling works. The term “works” is defined in s. 6 to include electric lines and other things required to transmit electricity. During the proceedings on the preliminary point, counsel for the plaintiff expressly conceded that it was within the scope of the Act to put the electricity cable across the river. The concession involved no more than an acknowledgment that the defendant’s act was done in the exercise or performance of its general functions under the Electricity Act 1976. On the authority of the High Court decisions referred to, it would not, on the material before us, necessarily have attracted a statutory exemption from liability for anything “done under” the statute. To invoke an immunity like that it would have been incumbent on the defendant to show, at the very least, that erecting and maintaining the cable across the river was an act or thing for which statutory authority was needed, and that it had been carried out in the exercise of that authority.
Erecting and maintaining a cable over land is not something for which statutory authority is required if the person who does it either owns the land in question or has the consent of the owner to do it. There are in the Electricity Act 1976 provisions in ss. 213 and 200 of the Act authorising the construction of electric lines on land with the consent of the owners or occupiers, or the acquisition of land or an interest in land to enable such work to be carried out. The material in the record does not disclose whether in erecting and maintaining the offending cable the defendant exercised any of those powers. One may perhaps hazard a guess that the airspace above the river was owned by or subject to the control of the Crown as part of the unalienated “waste” land of the State which, subject to any question of native title, is vested in the Crown under the Land Act 1962; cf. also s. 2.3 of the Water Resources Act 1989. Whether or not that is so, there is nothing to show that in erecting and maintaining that obstruction to the free passage of aircraft above the river, the defendant was doing anything that others could not have done without receiving specific authority from the Act.
If, therefore, the right of the defendant to invoke the protection conferred by s. 122(1) of the Electricity Act 1976 depended on its having done so “under” that Act, it would on the material in the record probably be held not to have established its claim to the statutory immunity conferred. In a context like this the expression “under this Act” means “by virtue of this Act”: cf. R. v. Clyne, ex p. Harrap [1941] V.L.R. 200, 201. That is the sense in which it was interpreted in the decisions of the High Court referred to in these reasons. There is nothing here to establish that in erecting or maintaining the cable the defendant, with the owner’s consent, was doing anything more than any other person might also have done with the consent of that owner.
The problem for the plaintiff is, however, that in conferring the exemption from liability s. 122(1) of the Electricity Act does not use the expression “anything done under this Act” or its equivalent. The exemption conferred by s. 122(1) is “on account of anything done for the purposes of this Act”. The statutory protection is much wider and more comprehensive than that considered in the High Court decision. It is available whenever anything is done with a purpose, and that purpose is among the purposes of the Act; or even, as s. 122(1) goes on to add, if it is done in good faith and purports to be for the purposes of the Act.
There can be no doubt that the erection and maintenance of the cable through the airspace above the Russell River was “anything done for the purposes of” the Electricity Act 1976, whether or not it was something that could be or was done only by virtue of a power conferred by that Act. Counsel’s concession that it was within the scope of the Act to put the cable across the river is probably sufficient to establish the point. But, in any event, it is impossible to doubt that the erection and maintenance of the cable at or in the place in question was, within the meaning of s. 129 of the Act, a thing done “for the purposes of” supplying electricity to consumers in accordance with that section.
The defendant is therefore within the scope of and entitled to invoke the protection or immunity from liability conferred on it by s. 122(1) of the Act. The learned judge of District Courts was correct in deciding the preliminary point in favour of the defendant and in giving judgment accordingly.
It only remains to say that, as Kitto J. pointed out in Board of Fire Commissioners v. Ardouin (1961) 109 C.L.R. 105, 116, an immunity like that created by s. 122(2) operates in the general interest, but at the cost of the individual. It is difficult to see why one individual should be left to bear the cost of something that is done in the interest of the community at large. Section 4 of the Limitation of Actions Act 1974 went to some lengths to identify and repeal all statutory provisions imposing special requirements of notice before action that operated to confer special protection on statutory authorities for the consequences of their injurious acts. It evidently did not take long for the electricity authorities of Queensland to circumvent that expression of legislative policy by having a special exemption of their own incorporated in the Electricity Act 1976.
The consequence is that I would dismiss the appeal with costs. However, the other two members of the Court have reached the opposite conclusion, although they differ to some extent about the precise form of order that should follow. Given that in these circumstances the appeal will by a majority be allowed, I agree with the order that is proposed by Fryberg J. for disposing of this matter.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 4049 of 1996
Brisbane
Before Fitzgerald P.
McPherson J. A.
Fryberg J.
[Masterwood P/L v. Far North Qld. Electricity Board]
BETWEEN:
MASTERWOOD PTY. LTD. (A.C.N. 054 890 550)
(Plaintiff) Appellant
AND:
FAR NORTH QUEENSLAND ELECTRICITY BOARD
(Defendant) Respondent
REASONS FOR JUDGMENT - FRYBERG J.
Judgment delivered 29th August 1997
In 1992, the plaintiff ("Masterwood") owned an aeroplane. It was a float plane, which I take it means that it was adapted to land on water. The defendant ("the Board") was an electricity authority as defined in the Electricity Act 1976. The Board owned an electricity cable which it had erected across the Russell River in North Queensland. On or about 29th November 1992, Masterwood's aeroplane collided with the Board's cable. Masterwood alleged that the collision was caused by the Board's negligence and that the aeroplane was damaged beyond economical repair. It sued the Board for its alleged loss in the District Court at Cairns.
In its defence, the Board denied negligence and alleged that the collision was caused or contributed to by the pilot of the aeroplane, who was Masterwood's agent. It further alleged that it was not liable by reason of s. 122 of the Electricity Act 1976. It counterclaimed for damage allegedly caused to the cable by the pilot's negligence. Masterwood delivered a reply and answer denying negligence, but somewhat astonishingly, the answer did not include an alternative allegation of contributory negligence on the part of the Board.
When the matter came on for trial, the judge was informed that a great deal of time would be saved if the statutory defence point were determined as a preliminary issue. He was told that no factual matters arose in relation to it. He agreed to make a determination. He heard argument on the question and on the following day delivered reasons for deciding the issue in favour of the Board. The trial of the counterclaim then took place over two days. In the reserved judgment delivered six days later, the judge assessed the Board's damages in the sum of $4,760.12, but gave judgment against it on the basis that no negligence was proved against the pilot. He formally gave judgment for the Board on the claim and for Masterwood on the counterclaim, with costs in each case.
Masterwood now appeals against the judgment on the claim. The Board has not appealed against the judgment on the counterclaim. The appeal must be determined on the assumption that the allegations in the plaint are true, notwithstanding that a trial has been held and reasons for judgment given on the counterclaim. Fortunately, there does not appear to be any major inconsistency between the allegations in the plaint and the reasons for judgment. I would, however, observe that the course adopted was most undesirable. While the possibility of an appeal by Masterwood remained, it should not have been adopted. Unless the counter-claim had been settled or dismissed, or the right of appeal on the claim had been waived, the claim and the counterclaim should have been tried together.
The allegations contained in the plaint were as follows:
"1. The plaintiff is a company incorporated and liable to sue in its corporate name and style.
- The defendant is a body corporate incorporated pursuant to the Electricity Act (as amended) and liable to be sued in its corporate name and style. The defendant was at all material time the electricity supplier in the relevant area and in particular to Deeral Landing over the confluence of the Russell and Mulgrave Rivers.
- At all material times the defendant had erected, maintained and used cables carrying electricity across the Russell and Mulgrave River confluence.
- At all material times the said cables were in approximately 20 metres above the water with a span structure supporting the said cables of approximately 400 metres.
- On or about 29 November 1992 William Harry Morgan the agent of the plaintiff was lawfully flying the plaintiff's Maule M 7 Float plane registered number VH IWM on its final approach preparatory to landing on the Russell River when it collided with the aforesaid electricity cables.
- The collision by the plaintiff's float plane with the cables was caused by the negligence of the defendant.
PARTICULARS
- Failure to erect, at any time prior to 29 November 1992, any or any adequate markers or lights on the overhead cable and their supporting structures.
- Failing to install any or any adequate aircraft warning marker on the overhead power cables in accordance with Australian Standard AS3891.1.
- Failing to erect any or any adequate marking panels on the structures supporting the overhead cables in accordance with Australian Standard AS3891.1.
- Failing to install any or any adequate high intensity obstacle lights in accordance with Australian Standard AS3891.1.
- Failing to paint the structures supporting the overhead cables in accordance with Australian Standard AS3891.1.
- Failing to notify the location of the cables and supporting structures to the appropriate mapping authorities so that they could be recorded on aerial charts.
- Failing and continuing to fail to mark, paint or light the cables and supporting structures when the Defendant knew or ought to have known that aircraft flew in and about the location of the cables and their supporting structures and that their presence had not been marked on any aerial charts.
- Failing to adequately mark, paint or light the cables when it know or ought to have known that the river was used as a landing area for float planes.
- Failed generally to ensure that the cable or its supporting structures were erected, marked positioned in such a way as to ensure that it was not a hazard to aerial navigation generally.
- Failing to ensure that any warning signs were free of obscuring undergrowth.
- Failing to ensure that any warning signs were readily visible to aircraft pilots when it ought to have done so.
- Failing to ensure that any warning signs were readily visible to a vessel on the surface of the water when it ought to have done so.
- As a result of the defendant's negligence the plaintiff's float plane was damaged beyond economical repair and the plaintiff claims damages therefore
PARTICULARS
Value of float plane $183,000.00
LESS net salvage value $ 15,000.00
TOTAL $168,000.00"
The plaint was apparently not settled by counsel.
The relevant paragraph of the defence was as follows:
"5. Further or in the alternative, the Defendant states that pursuant to section 122 of the Electricity Act 1976 (as amended), the Defendant cannot incur any liability in respect of the act or omissions alleged in paragraph 6 of the Plaint on account of anything done in connection with the erection, maintenance and use of the cables to carry electricity across the Russell and Mulgrave River confluence."
Section 122(1) of the Electricity Act 1976 provided as follows:
"122. Indemnities. (1) No liability shall be incurred by an Electricity Board, the General Manager, any member of the Board, the secretary to or any other employee of the Board or any other person whomsoever acting under the direction of the Board on account of anything done for the purposes of this Act or done in good faith and purporting to be for the purposes of this Act."
Paragraph 6 of the plaint reflects little credit on the draftsman. It purports to set out particulars of the negligence of the defendant. In fact it pleads a series of factual occurrences which plainly amount to far more than particulars. Most of if not all of these "particulars" should have been pleaded as events in a way which would have required the Board to plead to them in its defence. If the action is to proceed, the pleading should be amended to conform with the District Court Rules. The appeal may be dealt with on the assumption that the "particulars" are substantive allegations of fact.
The major argument advanced on behalf of the appellant was that the allegations made against the Board were all omissions; and that omissions were not covered by s. 122. Reference was made to Larkin v. Capricornia Electricity Boar[d] and Australian National Airlines Commission v. Newma[n] in support of this proposition.
In my judgment, this case is not concerned with the question whether s. 122(1) applied to omissions as well as to acts. As is apparent from paragraph 5 of the defence, the Board did not assert that it did. The reason for this is obvious. On their face, most of the omissions pleaded are unlikely to have been made "for the purposes of the Act". Certainly, that would be a matter which would have to be pleaded and proved, and no such allegation has been made. The question which was left open in both of the cases referred to can remain open, for it does not arise on the pleadings in the present case.
What the defendant pleaded was that it fell under s. 122(1) in respect of the construction, maintenance and use of the cable. The allegation of erection, maintenance and use in paragraph 3 of the plaint was as much an essential part of Masterwood's cause of action as the omissions alleged in paragraph 6. The Board implicitly pleaded that in constructing, maintaining and using the cable, it acted for the purposes of the Act, and was therefore entitled to the protection of the section. We must decide the correctness of that submission. We must consider that question against the tacit assumption made by both parties that the construction, maintenance and use of the electric line by the Board was in fact for the purposes of the Act.
That assumption may very well be correct, and I am certainly content to make it, having regard to the way in which the appeal was conducted. I would however point out in passing that there is a distinction between the purposes of the Act and the purposes and powers of an electricity authority. That distinction was rather blurred in the argument in this case. It is not easy to identify the purposes of the Act. The preamble provides:
"An Act to consolidate and amend the law relating to the organisation and regulation of the generation, transmission, distribution, supply and use of electricity in Queensland and to matters of safety with respect thereto; to amend the Public Service Act 1922-1973 in certain particulars and the City of Brisbane Act 1924-1974 in a certain particular; and for connected purposes."
In the context of s. 122, that might be thought to be unhelpful. The Act was repealed by the Electricity Act 199[4], but one can infer from the terms of the earlier act that its purposes were not much different from those of its successor. These are apparent from its objects:
"3. The objects of this Act are to-
- set a framework for all electricity industry participants that promotes efficient, economical and environmentally sound electricity supply and use; and
- regulate the electricity industry and electricity use; and
- promote electricity safety."
There is an obvious difficulty in applying purposes of that nature to s. 122. To overcome this difficulty, it is necessary to infer the purposes from the terms of the Ac[t]. This process must be approached with a broad brush; not every statutory requirement will amount to a purpose of the Act. Having regard to the way this appeal was conducted and to the repeal of the Act, it is unnecessary to consider this aspect further.
There is a well-known dictum which it is well to remember in construing sections such as s. 122(1):
"[The section] operates, then, to derogate, in a manner potentially most serious, from the rights of individuals; and a presumption therefore arises that the Legislature, in enacting it, has chosen its words with complete precision, not intending that such an immunity, granted in the general interest but at the cost of individuals, should be carried further than a jealous interpretation will allow.["]
For that reason, it would clearly be inappropriate to adopt an interpretation of s. 122(1) which had the effect that the section provided immunity in most or all cases where a person described in the section caused damage to another in breach of that other's ordinary rights. On the other hand, it is in my view also important to remember that some effect must be given to the section; and a construction must not be adopted which would render it nugatory. The section plainly operated to transfer risk; and the Court is not equipped to make generalised judgments as to the economic desirability of this course. The parliament must be presumed to have intended the section to have some significant operation.
The key part of the section for present purposes is "no liability shall be incurred . . . on account of anything done for the purposes of this Act". The first question is, what is the ambit of "anything".
Whatever its ambit, it is apparent that the word must comprehend the very thing on account of which, apart from the section, liability would be incurred. The primary meaning of "on account of" is "by reason of" or "because of["]. It follows that the "anything" must be something which brings about or causes liability. The whole point of the section is to negate liability in circumstances where otherwise it would arise. In one sense, that points up one clumsiness in the section. Liability arises by reason of the existence of a cause of action. That implies the existence of a number of facts, not all of which will necessarily be things done by a potential defendant. Plainly, "anything" cannot refer to the whole of a cause of action, but there is no reason why it cannot refer to the whole of the conduct of the potential defendant which is necessary to the cause of action and which brings about the liability. That, in my judgment, is how the word should be read. It is the complex of facts which constitutes the conduct to be tested for compliance with the sectio[n].
An alternative approach would be to allow it to refer to any act by the potential defendant which is included in the facts constituting the cause of action. In my view such a reading should be rejected. It does not sit happily with the words "on account of" and it would produce the result that there would be no liability in almost every case. It is difficult to imagine cases where a person named in the section might be sued for damages for negligence in respect of something connected with the Act or his or her office, where some part of the conduct could not be characterised as having been for the purposes of the Act. In my judgment that cannot be the proper construction of the Act.
At the same time, I do not think that a plaintiff can avoid the provisions of the section simply by introducing into the factual matrix an allegation of negligence by omission. For example, in the present case it is accepted that maintenance of the cable was a purpose of the Act. The provisions of the section cannot be avoided simply by including in the pleading an allegation that the defendant failed to maintain the cable or failed to do so properly. Nor can they be avoided by including an allegation which is no more than a particular of such an assertion. A hypothetical example might be an allegation that a defendant failed to prevent the development of rust in a cable. An omission to do an act which, had it been done, would have been for the purposes of the Act, cannot be relied upon to avoid the section. A court should not allow assertions which are mere negatives of conduct which plainly answers the statutory description.
A necessary step in any particular case will always be the determination of whether a particular act relied on by the plaintiff was indeed "for" a statutory purpose. By what test is a court to determine whether an act is "for" the purpose? The courts have often had to consider the meaning of connecting words and phrases such as "for", "on account of", "arising out of" and "in respect of". It is well settled that the last of these has a very wide meanin[g]. That is not true in the case of the first. "For" implies a direct and intimate connection between the two things or concepts connected.
In my judgment the section requires that the conduct in question ("anything done") be an essential or inherent part of carrying out the identified purpose of the Act or be necessarily incidental to that identified purpose. In my view, such a test is workable. It is a test which enables a line to be drawn at a point which will allow reasonable but limited scope for the section to operate. For the reasons advanced earlier, that is a consequence which ought to follow from the proper construction of the section.
In deference to the arguments advanced to us, I should refer to some of the cases. With one exception, they all involve sections where the relevant expression took the form "anything done under this act". Provisions in that form are different from s. 122(1) in two important respects. First, they do not require any identification of the purposes of the Act. Second, the connector "under" has a completely different meaning from "for". I see little scope in the present context for the precise approach which was taken in Board of Fire Commissioners of NSW v Ardoui[n], Hudson v. Venderhel[d] and Australian National Airlines Commission v. Newma[n]. Much of the focus in those cases is necessarily upon whether the act in question was done in the execution of a statutory power or duty. That is not an appropriate test in the present cas[e].
Newton v. Elli[s] and Jolliffe v. Wallasey Local Boar[d] were both cases where the relevant section also took that form, though they were cases concerned with giving notice of action rather than with exemption from or limitation of liability. I doubt whether the actual decision in Newton could be reached in Australia today in the light of the reasoning of the majority of the High Court in Australian National Airlines Commission v. Newma[n]. Jolliffe seems to have been a case where the authority in question simply did carelessly the very thing which the act empowered it to do. It was so regarded by the Privy Council in The Queen v. William[s], where the decision was described as one in which it was held "that an omission to do something which ought to be done in order to the complete performance of a duty imposed upon a public body under an Act of Parliament . . . amounts to ‘an act done or intended to be done' within the meaning of a clause requiring a notice of action."
The only case cited to us which involved a section in the form with which we are now concerned was in fact concerned with the same section. In Larkin v. Capricornia Electricity Boar[d] this Court applied Jolliffe v. Wallasey Local Board. It took the view that on the facts of that case, the authority failed to inspect properly by omitting part of the inspection. It seems to be implicit in the decision that inspection of installations of the relevant type was one of the purposes of the Act. The decision is simply one where it was held that the authority had done negligently the very thing which was a purpose of the Act. In my judgment, it does not control the outcome of the present appeal.
It remains to apply these principles to the circumstances of the present case. At this point, the deficiencies of the procedure adopted below become manifest. The Board has not suggested in its defence that any of the so called "particulars" was part of or necessarily incidental to a purpose of the Act; but because of the way the plaint was drawn, it was not obliged to do so. It seems to me a little unlikely in most cases that the Board will be able to demonstrate any such connection; but the possibility exists, and I do not think the Board should be deprived of the opportunity. Masterwood should amend its plaint, and the Board can then consider whether it wishes to pursue its reliance on s. 122 in the light of these reasons.
There are a number of unsatisfactory aspects about the conduct of this case. I have already referred to the pleading defects and to the possibility of inconsistent findings which arose as a result of the trial of the counterclaim. Another consequence of the separation of the hearings is that a decision has been given on the question of whether the pilot of the aircraft was guilty of negligence vis-a-vis the Board without any trial of the question whether he was guilty of contributory negligence in respect of Masterwood's aeroplane. Theoretically, it would be open to the Board (if this appeal were allowed) to pursue this question, notwithstanding the judgment on the counterclaim. If that were to happen without good reason, it would bring the law into serious disrepute. No doubt those involved would give very careful consideration to whether a claim for contributory negligence should be pursued.
I would order that the appeal be allowed and the judgment for the Board on the claim be set aside. I would remit the action to the District Court. Without limiting the power of the District Court to allow any other amendments as may seem proper, I would order that the plaintiff have leave to amend the plaint in respect of matters arising from the reasons for judgment in this appeal within 21 days of the date of judgment and that the defendant have similar leave to amend its defence within 14 days of delivery of any amended plaint. The Board should pay Masterwood's costs of and incidental to the appeal, to be taxed. Costs of the claim in the District Court to date should be costs in the cause.
Footnotes
[1] In force at the time of the material collision, but since repealed. See now the Electricity Act 1994.
[2] Compare Australian National Airlines Commission v. Newman (1987) 162 C.L.R. 466 and Larkin v. Capricornia Electricity Board [1995] 1 Qd.R. 268.
[*] The plaint refers to cables; but it appears from the defence that there was a single cable only.
[d][1995] 1 Qd R 268.
[n](1987) 162 CLR 466.
[4]Section 292 and Schedule 3.
[t]Compare Springvale Washed Sand Pty Ltd v. City of Springvale [1969] VR 784.
["]Board of Fire Commissioners of NSW v. Ardouin (1961) 109 CLR 105 at p. 116 per Kitto J.
["]See Macquarie Dictionary, 2nd ed., and Oxford English Dictionary, 2nd ed.; and see also O'Sullivan v. Lunnon (1986) 163 CLR 545 at pp. 549, 553.
[n]Compare Newton v. Ellis (1855) 5 El & Bl 115 [119 E.R. 424]; 24 LJQB 337.
[g]See the discussion in Cyclone Scaffolding Pty Ltd v. Commissioner of Stamp Duties [1985] 2 Qd R 435 at pp. 438 (Campbell C.J.) and 445 (McPherson J.).
[n](1961) 109 CLR 105.
[d](1968) 118 CLR 171.
[n] (1987) 162 CLR 466.
[e]I note in passing that the erection, maintenance and use of an electric line without a licence is unlawful (ss. 397(a) and 138(1)(b)). An Electricity Board must construct and maintain works (a term which includes electric lines: s. 6) and must ensure that every one of its lines is efficiently supervised and maintained in respect of both electrical and mechanical condition (ss. 129(d), 260). Presumably it must do so pursuant to a licence under s. 138. It is unnecessary to consider whether this would mean that it was doing so "under" the Act.
[s](1855) 5 El & Bl 115 [119 E.R. 424]; 24 LJQB 337.
[d](1873) LR 9 CP 62.
[n](1987) 162 CLR 466.
[s](1884) 9 App Cas 418 at p. 433.
[d][1995] 1 Qd R 268.