June 2019


Bushfire risk foreseeable: judge

by John Reynolds, KT Journalism and Kate Tilley, Resolve Editor

A power line inspection company and a private electricity pole’s owner have been found liable for a January 2014 Western Australian bushfire that burnt 392ha and destroyed 57 homes.

WA Supreme Court Justice Rene Le Miere awarded test case plaintiffs Gary and Sandra Elwood $774,733 for the loss of their home and outbuildings, loss of income, and other costs arising from the Parkerville fire. Damages for another 187 property owners have yet to be calculated.

The fire started on 12 January 2014 when a jarrah power pole on Noreen Merle Campbell’s property collapsed into dry bush. The fire burnt uncontrollably through Parkerville, Stoneville and Mount Helena. Ms Campbell owned the pole; Western Power (WP) owned the lines and equipment it carried; and inspections and maintenance on the Parkerville grid were conducted by Ventia Utility Services Pty Ltd (previously Theiss Services Ltd).

A post-fire inspection found the pole was affected by termites and rot and had not been properly maintained since it was erected in 1989. Ventia had worked on the pole in July 2013 but had not reported any safety issues.

Property owners affected by the fire sued WP, Ventia and Ms Campbell for damages, breach of duty of care, and causing the fire. All three denied liability.

On 27 March 2019, Justice Le Miere cleared WP of liability but said Ventia and Ms Campbell shared responsibility for the fire and its damage. He found Ventia did not implement compliant systems for training line crews.

The crew supervisor “was not competent and did not have the necessary skills, training and qualifications” nor did other Ventia employees conducting inspections.

Justice Le Miere accepted Ms Campbell’s argument she would have repaired the pole had Ventia identified issues and reported them to her, but Ventia’s failure did not fully release her from liability. “She had control of the pole [and] a person with control of a chattel or fixture has a duty to exercise care it does not cause harm.”

Justice Le Miere said Ms Campbell knew the area’s history of termite damage and stumps under her home had been damaged. “It was reasonably foreseeable to [Ms Campbell] the pole might be at risk of termite damage to the point where it would collapse,” he said. “It was reasonably foreseeable that, if the pole failed, it might cause damage to life and property by the ignition and spread of a fire.”

Justice Le Miere dismissed the claims against WP, finding Ventia had sole contractual responsibility to ensure the power equipment was safe and in good order.

He said WP did not owe the plaintiffs a duty to take reasonable care to regularly inspect and maintain the pole. “The imposition of such a duty of care is incompatible with ... the Electricity Act 1945 (WA) in conferring powers, and imposing duties, on WP [for] maintenance of assets. Furthermore, WP did not have the requisite control over the source of the risk of harm, which is the risk the pole might fail in service due to rot, termites or other damage and cause harm to life or property,” he said.

While WP owed a duty to take reasonable care to inspect the pole to ascertain whether it was in a safe and fit condition for use in supplying electricity, it discharged that duty by taking reasonable steps to engage and instruct Ventia to do the work.

Justice Le Miere ¬†said Ventia conducted the work as an independent contractor, not as WP’s agent. “WP is not liable in nuisance because it did not create the nuisance,” ie the fire.

He ordered Ventia to pay 70% of the Elwoods’ claim and Ms Campbell 30%.

Fire victims’ lawyers say the decision to hold Ventia and Ms Campbell responsible for not preventing the bushfire could be an Australian legal first.

There were four separate class action groups, represented by Slater and Gordon, Hall & Willcox and Civic Legal.

Slater and Gordon practice group leader Rory Walsh said now Justice Le Miere had apportioned blame and determined a cost formula for the Elwoods, it was important to swiftly finalise the compensation process. “We have sought orders from the court that a mediation be convened to agree on a path forward for [remaining property owners] to be compensated in the shortest possible time frame.”

Mr Walsh said WP was “fortunate to have avoided liability by sheeting responsibility home to its contractor”.

Hall & Wilcox partner Matt McDonald said Justice Le Miere’s decision set important legal principles that Ventia and Ms Campbell could dispute.

“It will be interesting to see whether the [appeal] court agrees WP’s duty of care is so narrow it was not even obliged to check [if] people conducting pole inspections on its network were adequately trained,” he said.

WP CEO Guy Chalkley said Justice Le Miere’s ruling highlighted the need for private power pole owners to regularly inspect equipment to ensure it was safe and reliable.

“The trial has been vital in helping to clearly define that maintenance of privately-owned power poles remains the responsibility of land owners,” he said.

Daniel Herridge & ors v Electricity Networks Corp t/a Western Power [No 4] [2019], WASC 94, 27/03/2019 

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