The Full Court found an electricity supplier negligent based on multiple breaches of duties of care without establishing a particular breach of its duty of care had caused the damage.
- Where there are multiple breaches of duty and damage results from one or more of the breaches, is the plaintiff required to prove which particular breaches of duty were causative?
- Whether the circumstances of this case amount to an exceptional case pursuant to s 13 (2) of the Civil Liability Act 2002 (Tas) (“the Act”)?
The appellant company, Brocklands Pty Ltd (appellant), conducted a nursery and garden supply business in Northern Tasmania. Tasmanian Networks Pty Ltd (respondent) were responsible for the supply of electricity to the property. On the evening of 10 December 2010, a branch fell across the high voltage (HV) power line, which tripped a circuit breaker (recloser) several kilometres from the appellant’s property. The appellant claimed that the recloser generated a power surge that resulted in HV electricity passing through the low voltage (LV) system on the appellant’s property damaging their programmable logic controller (PLC), an industrial digital computer. The appellant brought an action for damages against the respondent, contending that it suffered harm because of the interruption to the electricity supply, and claimed more than $2.5 million in damages.
The Decision at Trial
The trial judge held that a common law claim for damages for negligence had not been pleaded by the appellant.
At trial, the appellant argued that the HV electricity must have entered the LV system, thereby damaging the PLC due to incorrect configuration or installation of any hardware on or below the pole, in one of three different ways. The appellant therefore argued that the damage was caused by one or more breaches of duty for which the respondent was responsible.
The trial judge found the appellant had failed to establish causation i.e. the evidence failed to establish the damage to the appellant’s PLC was caused by any particular breach of duty by the respondent.
On appeal, the decision was reversed.
The Full Court held a cause of action in negligence was sufficiently pleaded by the appellant noting a plaintiff is required only to plead facts that show an entitlement to relief and there is no need to plead conclusions of law.
The Full Court noted that the proper approach to a case based on circumstantial evidence is as stated by Lord Cairns in Re Belhaven and Stenton Peerage (1875) 1 App Cas 278 at 279:
"... in dealing with circumstantial evidence, we have to consider the weight which is to be given to the united force of all the circumstances put together…”.
The Full Court found that all circumstantial evidence was to be considered akin to strands in a cable and it was sufficient to establish on the balance of probabilities that there were breaches of duty and that the damage suffered resulted from one or more breaches of duty, even if no individual breach could be identified as causative. Accordingly, the Full Court found the trial judge erred when he considered various aspects of the evidence in isolation from each other, and that he should have assessed the combined strength of the possibilities that the appellant’s damage had been caused by the various asserted breaches by the respondent.
The Full Court then undertook its own assessment of the circumstantial evidence to reach a conclusion as to whether negligence has been established on the balance of probabilities. It weighed up the three possibilities posed by the appellant (finding the respondent had breached 2 out of the 3 duties of care), historical evidence of electrical issues (which were remedied after the incident and no subsequent electrical issues recorded) and expert evidence. The Full Court concluded, on the balance of probabilities, that the damage to the appellant’s property must have resulted from one or more of the respondent’s breaches, despite the evidence failing to establish on the balance of probabilities, that the damage was caused by any particular breach of duty.
The Full Court then addressed the appellant’s argument that this was an ‘exceptional case’ within the meaning of s 13(2) CLA which covered the evidentiary gap on the precise cause of the damage suffered, and excused the appellant from establishing factual causation in the usual way. The Full Court held that it was not necessary, in the circumstances, for the appellant to rely on s 13(2) CLA (because the evidence did establish that a breach of duty caused the relevant harm in at least one of the ways alleged), however, if it was necessary to rely on s 13(2) CLA, it would apply to excuse the appellant from establishing factual causation, because it would be unreasonable and unjust for responsibility for the harm not to be imposed on the respondent.
Implications for you
Where there are multiple breaches of duty and damage is suffered as a result, a particular causative breach does not need to be proven to establish negligence. Claims based on circumstantial evidence may not be independently strong but when viewed holistically form a cause of action where there may be no other reasonable explanation. Defendants should not rest on the plaintiff’s onus, but should actively dispute plaintiff’s claims where circumstantial evidence in civil claims are strong.