The Facts

Brocklands Pty Ltd conducted a nursery business in the north of Tasmania. In December 2010 a tree fell across a high voltage (HV) power line a few kilometres from the nursery. The appellant claimed that this resulted in a power surge with HV electricity entering a low voltage (LV) system, causing damage to machinery. The appellant claimed that this occurred due to the improper installation of hardware which brought electricity to their property.

Brocklands could not pinpoint the exact way the HV entered the LV system. They offered three hypotheses of how this occurred, and argued the damage occurred through either one of the proposed pathways or by various combinations of them.

The case was a circumstantial case which proceeded on the basis that there had been an unusual history of unexplained damage to electrical items at the property dating back over ten years prior to the contested event. These unexplained damages ceased in 2012, after the respondent made alterations to the configuration of the equipment on the pole.

In 2015 the appellant brought an action for damages against the respondent.

At trial His Honour found that negligence had not been pleaded. Because of this finding he made no conclusion regarding whether or not the respondent owed the appellant a common law duty of care. His Honour also chose to analyse the evidence on a piece-by-piece basis instead of making an assessment on the combination of the evidence. Geason J gave judgment for the respondent.[1] This is an appeal from that judgment.

The Appeal

Brocklands Pty Ltd claimed that:

1. Their amended statement of claim did plead negligence. The failure to consider a case in negligence was a direct result of the trial judge’s failure to recognise this.

2. The trial judge was wrong to assess parts of the evidence in isolation. His Honour should have made an assessment on the combined strength of all of the circumstantial evidence. 

   Negligence 

   The trial judge had concluded that because there was no clear statement that the respondent owed the appellant common law duties in regards to preventing HV electricity entering a LV system that no cause of action in negligence had been pleaded.

 

The Full Court of the Supreme Court of Tasmania came to a different conclusion: ‘It is as plain as day that a cause of action in negligence was sufficiently pleaded.’[2]

The applicant’s statement of claim actually included detailed particulars of negligence and in paragraph 18 stated “Each of the matters pleaded in paragraphs 11 to 17 inclusive constituted a negligent breach of duty by the Defendant”.[3] Escourt J also went on to explain that it is not necessary to identify a specific cause of action and that a plaintiff only needs to plead material facts capable of establishing a cause of action in negligence.[4]

Did the respondent owe a duty of care?

The respondent argued that the appellant’s claim did not fall within any accepted category of duty. The Court disagreed with this argument.

It follows that the duty of an entity that transmits electricity that is owed to persons who might foreseeably suffer harm as a result of the transmission of electricity in an unintended way is an accepted category of duty that relates not just to personal injury, but also to property damage.[5]

Causation

The Full Court agreed with the appellant’s claim that His Honour was in error when he considered each asserted breach of duty in isolation from the rest of the evidence. They were satisfied that on the balance of probabilities the damage to the machinery and any other consequential damage suffered was caused by HV electricity entering the LV system. They were not satisfied on the balance of probabilities that the damage was caused by any particular breach.

 

As a matter of principle, if a plaintiff establishes on the balance of probabilities that a defendant owed him duties of care, and breached them, and that he suffered damage as a result of the plaintiff breaching such duties, then that plaintiff must be entitled to recover damages, even if it is not possible to establish on the balance of probabilities which breaches were causative.[6]

 

The respondent argued that this was an exceptional case as per s 13(2) of the Civil Liability Act 2002 (TAS).  The Full Court found that not being able to establish on the balance of probabilities which breach was the cause of the damage was not the sort of evidentiary gap s 13(2) intended to address.[7]

Escourt J also pointed out that the respondent failed to provide any alternative cause for the damage that occurred to the applicant’s machinery, stating: ‘In a circumstantial case, that of itself may be of significance to the ultimate question of proof’.[8] He referred to this case as being ‘purely a “strands in a cable” case and that no indispensable link in a chain of sequential reasoning could be identified overall.[9]

Both Blow CJ (Pearce J agreeing) and Escourt J relied on past cases to explain that it was ‘well understood that where evidence is circumstantial, an inference can be drawn from a combination of facts, none of which when viewed alone would support that inference.’[10]

The court upheld Brocklands’ appeal with damages to be assessed.