The NSW Court of Appeal has recently considered the liability of a property owner and his plumber for the death of a handyman electrocuted by a redundant solar hot water system.

In 2001 the property owner engaged a plumber to install a new gas hot water system at his premises, and to disconnect the supply from the previous solar hot water system. However, the plumber did not disconnect the electricity supply to the old system or advise the owner to engage an electrician to do so.

The owner later engaged a handyman to perform a number of tasks, including attending to a roof leak. The handyman inspected the roof and the redundant hot water system. He and the owner discussed the risk of working while the system was possibly still electrified. Six weeks later the handyman returned. Although he had earlier told his wife that he needed to call an electrician, he didn’t and was electrocuted while attempting to complete the job. The Court of Appeal agreed that the plumber had a duty to inform the owner about the need to have the electricity disconnected and that he breached this duty. However, the Judges disagreed about to whom this duty was owed, and about causation. The majority found that the plumber did not owe a duty to the handyman because he fell outside the class of persons to whom a duty was owed. That is, they found that it was not reasonably foreseeable that someone who already knew about the power connection and of the need to obtain an electrician was within the class of persons who might be put in danger. The majority also found that, in any event, the handyman acted freely, voluntarily and with full knowledge of the risk posed by the live connection.

The owner had six weeks to arrange for an electrician to disconnect the power following his discussion with the handyman and the majority found that it was foreseeable from the owner’s perspective that the handyman would, after a period, return to the building assuming that the power supply had been disconnected. The owner had a duty to arrange this, which he breached, so he was liable.

Stephens v Giovenco; Dick v Giovenco [2011] NSWCA 144 ​

This decision states that a duty is not owed to people who have knowledge of the particular risk because it is not foreseeable that those people, armed with that knowledge, will be harmed. Ordinarily one would expect an almost automatic imposition of a duty of care, with the plaintiff’s knowledge being relevant to the questions of causation and contributory negligence only.