High Court rejects bushfire appeal

By Resolve Editor Kate Tilley

The High Court has rejected an appeal by utility Western Power on its liability for a January 2014 Western Australian bushfire that burnt 392ha and destroyed 57 homes.

In a 2019 trial, 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 what’s known as the Parkerville fire.

Four separate class actions had been filed after the blaze, which 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 and other regions. Ms Campbell owned the pole; Western Power (WP) owned the lines and the equipment it carried; and inspections and maintenance on the grid were conducted by Ventia Utility Services Pty Ltd (previously Thiess 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. Thiess had worked on the pole in July 2013 but had not reported any safety issues.

WP initially cleared

Property owners sued WP, Thiess 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 Thiess and Ms Campbell shared responsibility for the fire and its damage. He found Thiess 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 Thiess employees conducting inspections.

Justice Le Miere accepted Ms Campbell’s argument she would have repaired the pole had Thiess identified issues and reported them to her, but Thiess’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 dismissed the claims against WP, finding Thiess had sole contractual responsibility to ensure the equipment was safe and in good order.

No duty of care

He said WP did not owe a duty to take reasonable care to regularly inspect and maintain the pole. While the power utility owed a duty to take reasonable care to inspect the pole to ascertain whether it was safe for use in supplying electricity, it discharged that duty by taking reasonable steps to engage and instruct Thiess to do the work.

Justice Le Miere said Thiess was an independent contractor, not WP’s agent. “WP is not liable in nuisance because it did not create the nuisance” (the fire).

Justice Le Miere’s decision was partly overturned on appeal in 2021.

The WA Appeal Court upheld the decision that Thiess and Ms Campbell were liable in negligence and nuisance, saying Thiess’s liability arose from negligent works on the pole in July 2013. It also upheld the trial judge’s decision that WP was not liable for Thiess’s negligence.

However, it found WP was directly liable to the plaintiffs for its own negligence. 

“WP was negligent in that it failed to have a system for undertaking periodic inspection of wooden point-of-attachment (PA) poles owned by consumers and used to support live electrical apparatus forming part of WP’s electricity distribution system,” the Appeal Court said. That negligence caused the plaintiffs’ loss and damage.

WP was ordered to pay 50% of the plaintiffs’ substantial damages, Thiess 35% and Ms Campbell 15%.

Appeal dismissed

In the High Court, Chief Justice Susan Kiefel and Justices Stephen Gageler, Michelle Gordon, James Edelman and Simon Steward, dismissed WP’s appeal.

WP had argued its “functions do not give rise to a relationship, especially as concerns control, which supports the asserted duty” and “the asserted duty is inconsistent with the statutory scheme”. But the High Court agreed WP’s failure to have an adequate inspection system was a breach of its broader duty of care.

The five judges found WP had “stepped into the arena; it exercised specific statutory powers in performing its statutory functions of undertaking, operating, managing and maintaining the electricity distribution system [and] any works, system, facilities, apparatus or equipment required for those purposes, and had attached Ms Campbell’s premises to [its] distribution system and energised those premises”.

Exercising those powers created a relationship between WP and all other people within the vicinity of its electricity distribution system. And it exercised those powers in a way that created or increased the risk of harm to those people, whom it had the power to protect.

“The PA pole only posed the risk it did because WP had attached its live electrical apparatus to it.”

No inconsistency with statute

The High Court found WP had “a duty to take reasonable care in the exercise of its powers, and the content of that duty relevantly required it to avoid or minimise the risk of injury to those persons, and loss or damage to their property, from the ignition and spread of fire in connection with the delivery of electricity through its electricity distribution system – a system which it undertook, operated, managed and maintained in the discharge of its functions and powers by placing its apparatus on Ms Campbell’s land. The common law imposed that duty in tort on WP which operated alongside the rights, duties and liabilities created by statute”.

WP had “focused incorrectly on the question of control or ownership of the PA pole, rather than [its] activities arising from the exercise of its statutory powers in the discharge of its statutory functions that gave rise to the risk of harm”.

The High Court found WP’s broader duty was not inconsistent or incompatible with the statutory functions and powers imposed on it.

Electricity Networks Corporation v Herridge Parties [2022] HCA 37 judgement 7/12/22

Herridge Parties v Electricity Networks Corporation t/as Western Power [2021] WASCA 111 (S), 2/11/2021

Herridge Parties v Electricity Networks Corporation t/as Western Power [2021] WASCA 111, 2/7/21

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

Law firm commentaries on the case:
Hall and Wilcox commentary
CBP commentary
Ashurst commentary