That is the gist of a story appearing now on ABC Online (‘No legal action to be taken over Parkerville bushfire, EnergySafety says’ ABC Online, 4 December 2014).
It appears the fire, that burned out 55 homes, was started when a private power pole failed. As there is no legislative requirement on private property owners to maintain their poles there can be no action for either a criminal or civil penalty by the regulator. That does not mean that people who lost their homes cannot sue the pole owner on the basis that he or she (or ‘it’ if the property owner is a corporation) was negligent in failing to maintain the poles.
Negligence is a common law action, that is it is an area of law that has been developed by the courts since Lord Aitken first said, in Donoghue v Stevenson  AC 562], that the manufacturer of ginger beer owed a duty to the ultimate consumer to take reasonable care to ensure the beer was safe and free of decomposing snail. It is not an action that is based on legislation so the absence of an obligation under the Energy Safety Act 2006 (WA) or any other Act, does not stop a person who was injured by the property owners failure to take ‘reasonable’ care from seeking to recover their damages.
It should also be remembered that an insurance company stands in the shoes of its insured. So the insurer of any of the lost 55 houses, if they have paid out to the homeowner, can chose to sue the person allegedly at fault.
Finally, remember that an action in negligence requires proof that the defendant owed a duty of care to others and failed to exercise reasonable care. We are told that this fire started when ‘termites and rot caused the power pole’s collapse’ causing ‘a sub-mains cable to pull through the hole at the bottom of the main switchboard enclosure, causing a short circuit. “Hot metal globules then fell and ignited vegetation at the base of the PA pole,” the statement said’.
Failure to inspect and maintain a private pole sounds like negligence, and the article quotes EnergySafety as saying ‘”Under common law, property owners have a duty of care to maintain their power assets in a safe condition…’ but those issues could well be tested. A duty of care isn’t owed to the world at large but only to people with a sufficiently close relationship; and the duty to take care is a duty to act reasonably in all the circumstances which takes into account the potential danger as well as the resources available to deal with the risk (Civil Liability Act 2002 (WA) s 5B; Wyong Shire v Shirt (1980) 146 CLR 40 ( Mason J). Reading this article one might think an action against the pole owner would be a given, but it’s never that clear cut without detailed knowledge of all the evidence.
It is up to the property owners, or their insurers, to decide whether to take the matter further and it will be up to the defendant’s insurer to decide what if any defence they will run or whether they will seek to offer a settlement should any private legal action be commenced.
An interesting article. Reminds me of the case of Goldman v Hargrave  Ch 645 Privy Council, where a property owner knowingly allowed a smouldering gum tree to remain unquenched, and was then sued successfully when a fire later broke out and damaged his neighbour’s property. Arguably, though, this case differs in that the property owner was probably unaware that a fire could be caused, while Hargraves did know one had been started. Also, Rylands v Fletcher.
This incident seems very similar to the Blue Mountains Fire claim, where the plaintiffs are arguing that the property owner should have maintained his own private pole, and that the electricity distributor knew he hadn’t done so, but didn’t enforce it’s notice requiring the property owner to make the necessary repairs.
Barry, there are similarities with the cases you mentioned but as you say, in Hargrave v Goldman there was a fire on the property and the High Court and Privy Council held that there was a duty on a landowner to do what they reasonably could to extinguish a fire once it started, and that’s not the case here. Rylands v Fletcher said that if you bring and keep something inherently dangerous onto a property and it escapes and causes damaged, you were liable regardless of whether or not you took reasonable care but Rylands v Fletcher is no longer part of the Australian law, today the question is always ‘did the defendant take reasonable care’ and as I said in the post what is reasonable depends on the circumstances, a point also made in Hargrave v Goldman.
Absolutely this is similar to the Blue Mountains issue but there I suspect the action (if any) will be against the electricity authority on the basis that, as I understand it, they were aware of the proximity of the power line to vegetation and had served a notice requiring action be taken, so then the question will be what is the reasonable follow up to that notice. That will raise issues considered in Pyrenees Shire Council v Day where a council served notice on a shopkeeper to fix his defective chimney but did not follow up, so when the shop was sold, the new owner did not know of the defect, used the fireplace and the shop was lost. But the problem here is we’re drawing very broad analogies when we don’t really know the facts, hence my caution in the original post. I don’t want to, and can’t conclude, whether there has been negligence or not, these are legal issues to be determined both on the law and facts, as well as by the tactical decisions of the plaintiffs and defendants as well as their insurers. Perhaps bushfires are just the price we have to, and are willing to pay to have electricity?
Excellent and well timed article; if only it could be distributed to the thousands of private property owners.