The Parkerville bushfire began on 12 January 2014 when a privately owned, jarrah wood electricity pole (known as a ‘point of attachment’ or PA pole) fell causing electrical arcing which ignited dry vegetation around the base of the pole. The fire burnt approximately 392 ha of bushland and destroyed 57 homes and a number of outbuildings. The jarrah pole was at least 30 years old (). It failed due to fungal decay and damage by termites ().
In this case Western Power ran a power line to the jarrah pole where it connected to the homeowner’s switchboard. From the switchboard a submains cable took the electricity down the pole and underground to the house. When the pole fell, the submains cable was pulled through a hole in the switchboard damaging the insulation and allowing a short circuit and arcing with the metallic edges of the switchboard enclosure. “Hot molten metal globules from the conducts and the metal enclosure dropped to the ground, igniting the dry vegetation …” (at ).
A class action on behalf of those affected by the fire was brought in the Supreme Court of Western Australia. The three defendants were
- Western Power, the network operator which used the jarrah poll to carry electricity from their network to the home of Mrs Campbell;
- Thiess, a contractor that was engaged by Western Power to replace a pole owned by Western Power. Part of that work involved disconnecting, then reconnecting the power line that ran, via the jarrah pole, to Mrs Campbell’s property; and
- Mrs Campbell who owned both the land the jarrah pole was on, and the jarrah pole.
In a 168 page judgment (Daniel Herridge & Ors v Electricity Networks Corporation T/As Western Power [No 4]  WASC 94) Le Miere J found that Mrs Campbell and Thiess had been negligent. Responsibility for the resulting damage was apportioned 30% and 70% respectively. The claim against Western Power was dismissed. The court, helpfully, published a two page summary of the judgement explaining the claims against the defendants and the outcome. You can read that here [Parkerville Judgment Summary – 27 March 2019] – I won’t repeat it and will assume readers have read that before proceeding to read my summary.
What is particularly interesting about this case is that it is a judicial determination of liability. Electricity supply companies have been sued for causing many bushfires including those of Ash Wednesday (1983) and the Black Saturday fires (2009). Although there have been payments made, those cases all settled rather than have a judge actually determine whether or not there was liability. This is one of, if not the first case where the liability for fire caused by failing electricity assets has been judicially determined.
The operations of Western Power are governed by legislation, including the Electricity Act 1945 (WA). The plaintiff’s argued that this Act gave Western Power the authority to enter premises, inspect pole and replace them if necessary. Further, they argued, this imposed a duty on Western Power to do those things. Le Miere J said (at ):
In any event, the fact that Western Power had power to enter upon Mrs Campbell’s land and inspect the PA pole or to replace the PA pole if it is unfit for its purpose does not mean that Western Power had a statutory duty to do any of those things. Furthermore, the fact that Western Power has a function and sometimes exercises power does not impose a duty on it to exercise that function or power on all occasions.
In short; just because an authority ‘may’ do something does not mean they ‘must’ do it, and just because they have done it in the past does not mean they now must do it at all times in the future. His Honour concluded (at ):
… s 25(1)(a) [the Electricity Act 1945 (WA)] imposed no duty on Western Power to maintain the PA pole or to maintain an installation of which the pole was a part. Furthermore, s 25(1)(a) confines Western Power’s duty to maintain service apparatus to a duty to maintain service apparatus belonging to Western Power and not service apparatus belonging to a consumer such as the PA pole.
Section 25(1)(b) imposes a duty on Western Power to take reasonable steps to ensure that the connection of its electricity supply to the consumers property is safe and to minimise the risk of fire. The plaintiffs argued that this imposed an obligation upon Western Power to inspect the power pole to ensure it was fit for purpose. His Honour said (at -):
Section 25(1)(b) does not impose on Western Power a duty to make routine inspections of a consumer pole and to replace, or require the landowner to replace, a consumer pole that is no longer fit and safe for the purpose of supporting service apparatus of Western Power…
The obligation imposed on the network operator by s 25(1)(b) to take all reasonable precautions may require the network operator to inspect a consumer pole in some circumstances. In particular, the obligation to take all reasonable precautions may require the network operator to inspect a consumer pole at the time the network operator attaches apparatus to, or does work on the pole. The content of the obligation in a particular circumstance is fact specific.
With respect to duty of care, His Honour held (at ) that Western Power did not owe a legal duty to make regular inspections and repair privately owned poles as that duty would be incompatible with the terms of the Electricity Act. The obligations imposed by the Act are a duty on Western Power to maintain its ‘service apparatus’ and not the apparatus owned by a third party, in this case Mrs Campbell: ‘The statutory scheme is that the consumer and not Western Power has the duty to maintain service apparatus that belongs to the consumer’ (). Further, the risk to the plaintiffs was that the pole would fail, fall and allow discharge of electricity to start a fire. It was the owner, Mrs Campbell, who had relevant control of that risk. At  His Honour said:
The PA pole belonged to Mrs Campbell. It was on her land. Western Power had a legal power in certain circumstances, to enter upon her land and inspect the PA pole. However, the existence of that power is not sufficient to give rise to a duty to exercise the power. In the absence of the exercise of the power Western Power did not have the requisite control over the source of the risk of harm.
If there is a duty on Western Power not to supply electricity via a pole that is unsafe, that duty can only arise if Western Power has actual knowledge that the pole is unsafe.
His Honour found (at ) that Western Power did have a duty to inspect the pole when undertaking work on the pole. There was, therefore, a duty to inspect the pole on 19 July when the power line to the pole was disconnected and then reconnected. If the inspection revealed that the pole was unserviceable then there would be a duty on Western Power not to connect the power to that pole (). However (at ):
A duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Generally, this duty of care will be satisfied by engaging a competent contractor to carry out work. Hence the general rule that a person is not responsible for the wrongful acts committed by the contractor or the contractor’s employees in the course of work for which they were engaged.
His Honour concluded that the decisions to engage Thiess, a specialist company that conducted many inspections and did work for Western Power was a reasonable response to the risk of failing domestic poles. At :
Western Power took reasonable precautions to ensure that qualified and competent personnel carried out the work, including pre-work inspections of wooden poles, by retaining a competent, reputable and experienced contractor to carry out the work under a contract which required the contractor to engage personnel to perform the work who are competent, have all the necessary skills, training and qualifications to carry out the work in accordance with the contract and have been inducted by Thiess and are able to perform the work without the supervision of Western Power’s personnel.
It was also alleged that Western Power had a duty to warn Mrs Campbell of the risk that old poles can rot and need to be inspected and, in some cases, replaced. At  His Honour rejected that argument. He said:
As a general rule a person does not have a duty of care to avoid risk of harm by advising another person of that other person’s legal duties and responsibilities. There is nothing in reg 253 of the Electricity Act Regulations or any other fact, law or circumstance of this case for that general rule not to apply. Western Power did not owe to the plaintiffs, or anyone else, a duty to take reasonable care to avoid harm by advising Mrs Campbell of her responsibility to inspect and maintain the PA pole in a safe condition.
The conclusion was that Western Power did not owe a duty to regularly inspect and maintain private poles. It did have a duty to inspect poles when working around them, such as when disconnecting and then reconnecting the pole to the Western Power distribution network but it met that duty by engaging the services of a ‘competent, reputable and experienced contractor’ to do that work. Western Power having done all it was reasonably required to do was not negligent and therefore not liable for the damage caused by the pole’s failure.
The plaintiffs also sued Western Power for nuisance, a different cause of action from negligence. Nuisance requires proof that the defendant unreasonably interfered with the plaintiffs’ enjoyment of their land: ‘The focus of nuisance is on the interference the plaintiff has suffered not – as in negligence – with the quality of the defendant’s conduct’ ().` His Honour said (at ):
Western Power is not liable in nuisance. It did not create, or participate in the creation of, the nuisance. Western Power did not install the PA pole. It had no duty to inspect and maintain the PA pole… Western Power did not carry out any work on the PA pole or inspect it. It was through no act of Western Power that the PA pole became in, or remained in, an unsafe condition and gave rise to a nuisance or created a state of affairs which caused the nuisance.
As noted above, Thiess, under contract to Western Power, had disconnected and then reconnected the AP pole to the Western Power network. This was done on 19 July 2013. The work involved inspecting the AP Pole to determine if it was ‘good’ (see -). The Thiess contractor determined that the pole, at that time, was serviceable.
A number of experts, called by different parties, met to see if they could come to a consensus view on issues relating to the case. They concluded that, given the state of the Jarrah Pole in 2014 (when it failed), it must have been unserviceable for some time before 2014. Whilst the various experts expressed qualifications on their ability to say, with certainty, when the pole became unserviceable it was clear, and the judge found (at ), that the:
… pole was unserviceable in the sense of not being fit for its purpose in July 2013; it lacked the structural capacity to withstand forces likely to be applied to it even though it was strong enough to remain standing at that time. Further, I am satisfied that the PA pole ceased to be serviceable sometime prior to that, and probably before 2010.
In other words, although the Thiess employee found, in July 2013, that the pole was ‘good’, the expert evidence was that it was not and could not have been fit for purpose at that date. In his first statement, the Thiess team leader said ():
We done a check on the consumer pole (a sound check with a hammer and dug down to see if the pole is good, it was good and we carried on with our work).
That witness later agreed (; see also ):
… that he did not actually have any specific recollection that he did a sound check with a hammer and dug down to see if the pole was good, he said that was a standard practice and that was all in fact he could recall about what he must have done on that day.
Le Miere J found (-]174]):
Mr Bartosch inspected between 460 and 690 poles each year. His usual practice required him to perform six or seven hammer tests per week. The PA pole was just one of hundreds of poles he inspected in the two-year period prior to the fire…
Mr Bartosch could not provide details of any specific pole he had worked on in the six months prior to trial. The reliability of Mr Bartosch’s recollection and evidence of the PA pole, and his inspection of the PA pole in July 2013, was further undermined by the mistakes and lack of care he showed in incorrectly completing the JSA and CUSA forms and his own unsatisfactory explanations for having signed off on those errors…
On 19 July 2013, Mr Bartosch did not know what a termite mudding was. He said that he had never encountered termites or termite damage on a pole prior to 19 July 2013. Mr Bartosch conceded the external face of the PA pole above the ground had splits and cracks, notwithstanding his initial evidence that there were no cracks or splits visible in the PA pole.
Thiess argued () that the court should not find that the use of a private contractor by a statutory authority (in this case, Western Power) meant that the contractor assumed the ‘burden of ensuring that government assets are safe and fit and remain safe and fit’. The plaintiffs argued that the duty on Thiess was no more than the duty to perform work in accordance with the terms of the contract with Western Power which included an obligation, agreed to by Thiess, to comply with Western Power’s Work Practice Manual.
At - His Honour set out his reasons for finding that Thiess did indeed owe a duty of care. They were in control of the work at the pole, they should have realised that if they failed to exercise reasonable care when inspecting the pole (which they were required to do as part of their contract with Western Power) then it was foreseeable that harm would follow if the pole was in fact unserviceable. It was Thiess, and not Western Power or the class of people at risk from fire, that could take action to inspect the pole and determine whether it was currently fit for purpose.
Thiess was negligent. At  and :
… Thiess’ leading hand, Mr Bartosch, did not exercise due skill and care during the conduct of his pre-work safety inspection. The inspection did not comply with the Work Practices Manual or industry standards…
On his own evidence, Mr Bartosch made an inadequate assessment and observations of the PA pole. He did not make an assessment of the age of the PA pole and did not seek to find out its age. Mr Bartosch did not observe any problem with the physical condition of the PA pole. However, I find that on 19 July 2013 the PA pole showed significant signs of deterioration including weathering, splits, cracks and termite mudding. In July 2013 Mr Bartosch did not know what termite mudding was. It was his understanding that he had not come across the effects of termites on a pole.
A reasonable defendant in the position of Thiess would have inspected the pole in accordance with identified industry standards and the customer’s Work Practices Manual. A reasonable defendant would also have ensured that their field staff were properly trained to apply those industry standards. Mr Bartosch had not received adequate training, having been shown how to inspect a pole once or twice in 2005 and receiving no further instruction (see -). His Honour found (at ):
… that Thiess breached its duty of care in both respects asserted by the plaintiffs – it failed to adequately train and supervise the line crew and it failed to exercise due care and skill in inspecting the PA pole in accordance with its contractual obligations and industry standards.
Had Thiess properly inspected the pole they would have reported to either Western Power or Mrs Campbell (or both) that the pole was unserviceable and could not be reconnected to the network. Either Western Power or Mrs Campbell would have made arrangements to replace the pole (as it was in both their interests to have the electricity reconnected) and the failure of the pole (see -), and with it the fire, would have been prevented. As a result of finding that Thiess owed a duty of care, had been in breach of its duty and that the breach caused the fire and resultant losses, Thiess was found (at ) to be ‘liable in negligence to the plaintiffs for the loss and damage suffered by them as a result of the fire.’
Further (at ) Thiess was found liable in nuisance for leaving the work site on Mrs Campbell’s property in an unsafe condition, ie with an unserviceable PA pole connected to the power network. At  ‘The fire was an actionable nuisance caused by the manner in which Thiess left the worksite.’
At - Le Miere J said:
Mrs Campbell was the owner of the PA pole and the land to which it was affixed. She had control of the PA pole. A person with control of a chattel or fixture generally has a duty to exercise care that it does not cause harm.
A reasonable person in Mrs Campbell’s position ought reasonably to have foreseen that if the PA pole was not inspected, it would become unsafe after it had been in the ground for more than 25 years. That is all the more so if the reasonable person has Mrs Campbell’s actual knowledge of a history of termite damage to wooden structures on the land and knowledge that termites had eaten out the jarrah stumps under the house. It was reasonably foreseeable to a person in the position of Mrs Campbell that a jarrah PA pole might be at risk of termite damage to the point where it would collapse. It was reasonably foreseeable to a person in Mrs Campbell’s position that if the PA pole failed it might cause damage to life and property by the ignition and spread of a fire.
Mrs Campbell had control over the PA pole which was the source of the risk of harm. The PA pole was her property and it was imbedded in the ground on her land.
The asserted duty of care is consistent with established legal principle.
It is an important principle of negligence law that the defendant’s conduct is judged against that of the hypothetical reasonable person. It did not matter that Mrs Campbell said that she did not know of the risk or foresee the risk of potential harm, the question is what would the ‘reasonable person’ have foreseen. And a reasonable person would know that they are responsible for items on their land and that wooden poles are likely to deteriorate over time. In fact Mrs Campbell did have some knowledge of that as termites had destroyed jarrah stumps that held up her house. At  the judge said:
It is not to the point that Mrs Campbell did not know of, or turn her mind, to the ownership of the PA pole, its vulnerability to bio-deterioration or her responsibility to maintain it. A reasonable landowner in her position would have foreseen the risk.
And at :
Mrs Campbell breached her duty of care. She took no steps to procure the necessary inspections, or any inspection. She never asked anyone to do so on her behalf. As far as she knew the PA pole had never been inspected.
Mrs Campbell was liable in negligence () and nuisance ().
Apportionment between Thiess and Mrs Campbell
His Honour agreed that the failure by Thiess was more significant than the failure by Mrs Campbell. At - he said:
… Thiess was engaged on a commercial basis as a specialist contractor. Thiess was, or should have been, aware of industry practice for training line crews. Thiess did not conform to those standards.
Thiess was responsible for the manner in which it carried out the 19 July 2013 pre-work inspection. Thiess was the only party who inspected the PA pole. It did so in a professional capacity and undertook contractual and tortious obligations to inspect and assess the condition of the PA pole to industry standard. It fell short of the standard to be expected of a reasonable line maintenance contractor. Its relative responsibility is exacerbated by its lack of any adequate systems for training or supervision of its line crews in relation to pre-work inspections, especially when it knew of the risks associated with old, unknown and unmaintained consumer poles. Thiess’ negligent performance of the July 2013 works was due to systemic shortcomings rather than to a one-off incident of inattention or some accident…
Nevertheless, Mrs Campbell’s departure from the applicable legal standard of conduct was substantial. As the owner of the PA pole and the owner and occupier of the land to which it was affixed, Mrs Campbell had control of the PA pole. She did nothing to inspect or maintain the PA pole.
In all the circumstances I apportion responsibility 70% to Thiess and 30% to Mrs Campbell.
As noted earlier this is the first case where the liability of electricity authorities for bushfire has been judicially determined. Having said that we must remember that a decision of a single judge, even a Supreme Court judge, does not create a binding precedent. Further, whilst I don’t know I would not be surprised if Thiess and/or Mrs Campbell took this result on appeal. Pending any decision of a Court of Appeal we can draw these conclusions.
- A company like Western Power does not owe a duty of care to inspect and maintain private electrical assets. Its duties are to maintain its own infrastructure. Where it is working on and around private assets, or connecting them to the network, then there is a duty to inspect those assets and ensure that they are safe and fit for purpose.
- A company like Western Power can meet that duty by engaging a contractor that claims to provide those services and to be expert in that work and where there are quality assurance guarantees built into the term of the agreement. In this case Thiess had guaranteed that its staff were trained and competent and that various standards including those set out in Western Powers manual would be met. It would defeat the purpose of the contract if the principal then had to supervise the staff of the contractor to make sure they had done their job to that standard.
- Given the evidence as to the nature of the inspection and the training, or lack of training given to Thiess staff, the finding of negligence by Thiess is not surprising. Thiess were contracted to do a job to a professional standard where the risk to others should they fail was obvious. They failed to meet the obligations that they agreed to and failed to perform to industry standard.
- The liability of Mrs Campbell may be a surprise but reminds readers that the test in negligence is not whether the defendant’s actions were reasonable given what they knew, thought or believed, but what a reasonable person would have done in the circumstances.
- Liability can be apportioned. Just because Thiess owed the community a duty to take reasonable care does not mean that Mrs Campbell did not also owe a duty of care. The fact that Thiess was negligent does not mean that Mrs Campbell was not also negligent. The law does not allow a defendant to escape liability by saying ‘but they did the wrong thing too’. Rather it allows a judge to apportion liability between the parties to reflect their contribution to the ultimate loss. The commercial nature of Thiess’ contract and their claimed expert knowledge meant they shared the bulk of the responsibility.