Thinking | 6 July 2021

Court of Appeal finds Western Power, its contractor and landowner liable for Parkerville bushfire

By Liam Campion and Matt McDonald

The Western Australian Court of Appeal has delivered judgment in favour of more than 200 of Hall & Wilcox’s clients, finding network operator Western Power, its contractor and a landowner liable for property losses arising from the Parkerville bushfire in the Perth Hills in 2014. In a landmark decision, the Court rejected Western Power’s business practice of abrogating its responsibility for the maintenance of consumer-owned assets used in its electricity network. In doing so the Court found Western Power liable for many years, if not decades, of neglect.

The Parkerville bushfire occurred when a rotten and termite-affected timber electricity pole collapsed and the discharge of electricity sparked a fire. The pole was a consumer pole, owned by a private landowner. It was common ground that the timber pole was more than 30 years old and had never been maintained, inspected or treated over the course of its life. Western Power’s excuse for failing to maintain the pole for more than three decades was that it had no responsibility to do so as the pole belonged to the landowner and the legislation only required it to maintain assets belonging to it. The landowner’s explanation for failing to do so was that she did not know it was necessary. Approximately six months prior to the fire, Western Power appointed a contractor (Ventia Utility Services Pty Ltd, formerly known as Thiess Services Pty Ltd) to carry out works on its distribution network. As part of those works, the contractor needed to remove and reattach electrical infrastructure to the pole. During this process, the contractor inspected the pole and deemed it safe and suitable for ongoing use. Six months later the pole collapsed. The plaintiffs sued each of Western Power, the contractor and the landowner.

The pole collapsed due to rot and termite activity that had severely compromised its structural integrity and the expert evidence at trial made it clear that the pole would have been in a defective condition for many years prior to the fire. At first instance, the trial judge found the contractor liable for negligently inspecting the pole six months prior to the fire and the landowner liable for failing to maintain the pole over the course of its life. Western Power avoided liability on the basis that it did not own the pole and therefore had no obligation to maintain or inspect it. Liability was apportioned 70% to the contractor and 30% to the landowner.

The plaintiffs and the landowner appealed against the exculpation of Western Power. The landowner also appealed against her liability to the plaintiffs. On 2 July 2021 Buss P, Mitchell JA and Murphy JA of the Western Australian Court of Appeal delivered their unanimous judgment allowing the appeal of the plaintiffs in finding Western Power to be liable in negligence. The landowner failed in her appeal against her own liability but also succeeded in her appeal against the exculpation of Western Power.

The Court found that Western Power owed a duty of care to periodically inspect the pole over its service life. Section 25 of the Electricity Act 1945 (WA) required Western Power to maintain all service apparatus belonging to it. While the Court accepted that Western Power did not own the pole itself (the landowner did), the Court rejected Western Power’s submissions that this meant it had no statutory obligation to maintain the pole. Western Power chose to use the pole to support a service cable that was owned by Western Power, in order to provide electricity to the landowner’s home. Western Power did, under the statute and at common law, owe a duty to maintain its own service cable in a condition that was safe for the provision of electricity. In allowing the appeal, the Court held that Western Power could not possibly maintain its own service cable in a fit and safe condition if the pole it was attached to was incapable of safely supporting it. Accordingly, Western Power did owe a duty of care to maintain the pole.

The Court found that the risk of an untreated and poorly maintained timber pole supporting electricity infrastructure collapsing and causing a fire was reasonably foreseeable and that a responsible network operator would have undertaken periodic inspections of such wooden poles that were greater than 15 years old in bushfire-prone rural areas (as indeed Western Power did for poles belonging to it). Had Western Power done so, the defective condition of the pole would have been detected prior to its failure and the pole would have been replaced, preventing the bushfire from occurring. Accordingly, Western Power’s negligence over the course of many years caused the fire.

The landowner failed in her appeal against liability. The Court accepted that the landowner – or her husband with her knowledge – installed the pole decades ago and knew that an electrical cable was attached to it. The landowner was in control of the pole on her property and given the magnitude of the risk of fire, a reasonable landowner in her position would have known that a wooden pole could not have an infinite operating life. Those matters ought to have been further appreciated by the landowner herself given her home and property had experienced problems with termites attacking wooden structures during the 1990s and 2000s. The Court found that a reasonable person in the landowner’s position would have appreciated that by the time the pole was 25 years old, it ought to be inspected by a competent contractor.

The Court dismissed other grounds of appeal, and upheld the trial judge’s finding that while a network operator owed a duty of care to competently inspect a pole prior to carrying out works on it, that duty was delegable and Western Power responsibly delegated its duty to the contractor six months prior to the fire.

In apportioning liability, the Court found Western Power to be the primary tortfeasor given its breach occurred over many years. It had actual knowledge of the nature and extent of the danger of pole failure causing fires and had the technical means and resources to alleviate the risk. The contractor’s default occurred only once on a particular day, making it less grave than Western Power’s years of neglect. While the landowner’s neglect occurred over many years also, she had no actual knowledge of the relevant risk or the actual lifespan of timber poles and she lacked the electrical expertise and resources of the other two defendants.

The Court apportioned liability as follows:

  • 50% to Western Power;
  • 35% to the contractor; and
  • 15% to the landowner.

This landmark decision will have far-reaching implications for the citizens of Western Australia, particularly those living in rural and bushfire-prone areas. Quite aside from securing justice for more than 200 of Hall & Wilcox’s clients and their insurers who suffered losses in the Parkerville bushfire, this decision makes it clear that Western Australian network operators can no longer hide behind private landowners and abrogate responsibility for the maintenance of electricity infrastructure to which the network operator’s apparatus is connected for the purpose of distributing electricity. This decision will hopefully compel network operators in Western Australia to fall into line with standards already commonly applied by network operators in Victoria and New South Wales, and avoid future catastrophic bushfires.

(Herridge Parties v Electricity Networks T/as Western Power & Anor [2021] WASCA 11)

Contact

Liam Campion

Liam is an insurance lawyer with expertise in mass tort litigation including class actions, indemnity disputes and insurance fraud.

Matt McDonald

Matt is an experienced insurance lawyer acting for leading insurers, specialising in public and product liability.

Related industries

Related practices

You might be also interested in...

Insurance | 17 Jun 2021

Principal’s duty of care considered: subcontracting work, subcontracting duty of care to workers on site?

The District Court of Western Australia recently delivered its decision in favour of Principal Contractor Schneider Electric in the case of Clark v Schneider Electric (Australia) Pty Ltd [2021] WADC 11.

Insurance | 6 Jul 2021

A smouldering burn: Hall & Wilcox secures justice for the victims of the Forcett/Dunalley bushfire

The Supreme Court of Tasmania has found a landowner (Ms Barrett) liable in both negligence and private nuisance for property damage arising out of the 2013 Forcett/Dunalley bushfire.