Down to the wire
Many insurers involved in personal injury will be familiar with, and at some point, have been a party to contribution proceedings, where the liability for the damage suffered is attributable to more than one party.
In Victoria, the entitlement to seek contribution is provided for under section 23B of the Wrongs Act 1958 (the Act). Pursuant to the Act, a person liable for any damage suffered by another person may recover contribution from any other person liable for the same damage. The defendants in the recent Supreme Court decision of Notman v Wesfarmers & Anor  VSC 457 sought to do precisely that.
In this case, Carli Notman (Notman), a former Wesfarmers’ employee, had sustained injuries after receiving an electric shock when she touched some shelving while stacking boxes in the store room of the Coles supermarket in Wangaratta in April 2007.
Notman issued proceedings against both her employer, Wesfarmers Pty Ltd (“Wesfarmers”) and Floyd Industries Pty Ltd (“Floyd”), an electrical company who was contracted by Wesfarmers for the provision of electrical works at the Coles supermarket. Wesfarmers commenced a recovery action against Floyd, seeking recovery of payments made by Wesfarmers to or on behalf of its injured employee, Notman. This was being heard concurrently with Notman’s proceeding.
Midway through the trial, a settlement agreement between Wesfarmers and Notman was reached with respect to Notman’s claim, leaving only the question of contribution to be determined by the Court as follows:
- was there negligence or breach of duty on the part of Wesfarmers which was causative?
- was there negligence or breach of duty on the part of Floyd which was causative?
- if yes to both, what is the appropriate apportionment of liability between the parties?
It was common ground between the parties that the shelving had been secured to the store room wall by Floyd approximately two months prior to the incident, in February 2007, and that a dynabolt used by Floyd to secure the shelving had contacted some electrical wiring beneath the surface tiles of the wall, which had caused the shelving to become live and resulted in injury to Notman.
The burning questions before the Court were whether:
- the risk of the dynabolt contacting potentially live wiring was reasonably foreseeable at the time the shelves were being secured to the wall, and whether precautions should have been taken to prevent it from occurring; and
- Wesfarmers had notice of a previous injury by way of electric shock to a contracted cleaner who had allegedly reported the incident to her supervisor.
At trial, the Court accepted evidence by Floyd employees and an independent expert electrician that the wiring beneath the surface tiles of the wall had been installed contrary to the applicable standards and was not wiring a reasonable electrician would expect to come across in the circumstances.
The Court accepted that there were a number of precautionary actions available to Floyd, such as entering the manhole in the ceiling of the store room or removing the face of the light switch connected to the wiring, which if taken, would have put Floyd on notice of the unusual wiring and potential risk. However, it found that because Wesfarmers had not provided copies of building or wiring plans of the supermarket, or raised any potential issues with Floyd prior to undertaking the works, it had failed to bring the non-standard wiring to Floyd’s attention and that Floyd had no reason to suspect that there would be wiring beneath the surface tiles of the wall and therefore had no reason to undertake any further precautions other than a visual inspection of the room.
The Court was satisfied that Wesfarmers had failed to respond to prior knowledge of an electric shock incident involving a contracted cleaner and that it had breached its duty of care by failing to notify Floyd of the irregular wiring.
The Court held that by reason of the unprecedented and abnormal electrical wiring, which was installed contrary to the applicable building regulations and standards, the risk of electric shock injury was not a reasonably foreseeable consequence of the work carried out by Floyd in February 2007 and dismissed both the contribution claim and the recovery action.
- The Court will not hold a contractor liable for damages in circumstances where they have acted reasonably and in accordance with industry standards.
- An owner/occupier should provide all building plans/drawings and blue prints to its contractors prior to commencing any structural works, to ensure any unknown dangers can be identified and avoided.
- A party will only ever be able to recover the amount of contribution that is found by the Court to be just and equitable, having regard to the extent of each party’s respective responsibility for the damage.
- The Court has the power to exempt any person from liability to make contribution.