Delegable or non-delegable duty of care and breach of that duty of care

There were two significant cases handed down in the last four months in Western Australia.

Non-delegable duties are usually confined to special relationships such as employer/employee. In the first case, the plaintiff tried to extend that duty to a third party and failed. In the second case, the defendant was a de facto employer and was found to owe a normal duty of care but the standard of care owed was that of a reasonable employer. Neither defendant was an employer or otherwise in a special relationship and neither defendant was held to owe a non-delegable duty of care.

In the case of Daniel Herridge & Ors v Electricity Networks Corporation t/as Western Power [No 4] [2019] WADC 94, delivered 27 March 2019, the Supreme Court of Western Australia found that Western Power owes a duty of care under the Electricity Act 1945 (WA) to take reasonable care in the supply of electricity to the premises of a consumer, but does not owe a duty to make regular inspections or perform ongoing maintenance on a consumer’s pole—as this would be inconsistent with the legislative scheme in the Electricity Act. Western Power does not have a duty to take reasonable care to notify landowners of the risks associated with old poles.

Western Power does owe a duty to take reasonable care to inspect consumer poles if maintenance is being performed by Western Power, but this duty is delegable.

Western Power had discharged its delegable duty by taking reasonable steps to engage and instruct a competent contractor, Thiess.

The Plaintiffs lost against Western Power, but won against the contractor, Thiess, and the landowner who owned the land on which the pole stood.

The Plaintiffs alleged Western Power should have done the following (inter alia):

• supervised Thiess
• trained and inducted the line crew of Thiess working on poles
• notified landowners of wooden poles of risk factors affecting the serviceability of wooden poles, and
• notified landowners of their responsibility in inspecting and maintaining the poles.

The Court disagreed.

In the case of Sulub v Tyres4U Pty Limited [2018] WADC 139 the Plaintiff, who was employed by a labour hire firm, was placed to work for Tyres4U Pty Ltd at its premises in Welshpool and the Defendant was found liable.

The Court held that the Defendant:

• owed the Plaintiff a common law duty of care as a host employer, not a non-delegable duty, to take reasonable care of him while he was working under its instructions and directions, and
• at common law, the conduct of the Defendant was to be measured by the standard of a reasonable employer.

This case also highlights the importance of:

• how much parties relied on the credibility of witnesses as it was found that “their evidence was given in a manner that suggested that the answers were answers given based on what should have happened, rather than based on an actual memory of what in fact happened on 15 January 2015”, and
• keeping all evidence that may be required at trial.