In 2019 I reported on the decision of Le Miere J sitting as the Supreme Court of Western Australia in the case of Daniel Herridge & Ors v Electricity Networks Corporation T/As Western Power [No 4] [2019] WASC 94) (see Liability for 2014 Parkerville (WA) bushfire (April 4, 2019)). At the conclusion of my post, I said:
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.
It has come to my attention that there were appeals in this matter, first to the Court of Appeal (Herridge Parties v Electricity Networks Corporation T/As Western Power [2021] WASCA 111 (2 July 2021)) and then to the High Court of Australia (Electricity Networks Corporation v Herridge Parties [2022] HCA 37 (7 December 2022)). Given the High Court gives the definitive ruling this post will report on the decision of the High Court, not the Court of Appeal.
The decision in the High Court was delivered in a joint judgment of Kiefel CJ, Gageler, Gordon, Edelman and Steward JJ. A brief summary is at [1]-[2]:
This appeal arises from claims made by a large number of plaintiffs for loss and damage resulting from a bushfire in Parkerville, Western Australia. The fire started on 12 January 2014 when a jarrah pole on the land of the fourth respondent (“Mrs Campbell”), to which the electrical cable and other apparatus of the appellant, Electricity Networks Corporation (which traded as Western Power) (“Western Power”), were attached, fell to the ground causing electrical arcing and igniting dry vegetation around the base of the pole…
… The PA pole failed below the ground line due to fungal decay and damage by termites.
Power was supplied by Western Power along their network to a termination pole. From there a service cable carried power to the homeowner’s pole and was connected to the homeowners connection box. In 2013 Thiess was contracted to replace the service cable running from Western Power’s termination pole to the ‘point of attachment’ or PA pole owned by Mrs Campbell.
The Court said (at [6]):
The trial judge found that industry practice required steps to be taken before performing works like the July 2013 works, including inspecting and sounding (striking with a hammer, axe or solid bar) the PA pole to identify signs of deterioration, as well as digging around the base of the pole to allow detection of one or both of surface decay and termite attack in the below ground critical zone. Thiess’ leading hand did not perform a sounding test on the PA pole in accordance with industry standards: he did not perform the necessary hammer test adequately and he did not adequately dig around the base of the PA pole.
The trial judge found (at [8]-[11]) that the failure to maintain the pole (by Mrs Campbell) and to properly inspect it (Thiess) was negligent and that the parties were liable (30% and 70% respectively) for the damage caused by the subsequent fire. The trial judge found that Western Power had a duty to ensure a PA pole was safe before it was connected to its power distribution network but that it had met that duty by engaging an appropriate contractor (Thiess) and by imposing contractual obligations upon Thiess as well as crew inductions ([12]-[13]). The court rejected a claim that Western Power had a broader, and more pro-active duty to inspect poles such as Mrs Campbell’s private PA pole. In a helpful judgment summary, issued by the Court said (p. 3, point 6):
Western Power did not owe to the plaintiffs a duty to take reasonable care to regularly inspect and maintain the jarrah pole. The imposition of such a duty of care is incompatible with the legislative scheme of the Electricity Act 1945 (WA) in conferring powers, and imposing duties, on Western Power in relation to the maintenance of assets. Furthermore, Western Power did not have the requisite control over the source of the risk of harm, which is the risk that the pole might fail in service due to rot, termites or other damage and cause harm to life or property.
On appeal, the Court of Appeal upheld the findings of negligence by both Mrs Campbell and Thiess. Relevantly the Court found that Western Power has also been negligent. It not only had a duty to inspect the PA pole when connecting it, but there was also a duty to periodically inspect the pole to ensure its integrity. THE Court of Appeal apportioned liability between the three defendants as Western Power 50%, Thiess 35%, Mrs Campbell 15% (Herridge Parties v Electricity Networks Corporation T/As Western Power [2021] WASCA 111 (2 July 2021), [356]).
Western Power appealed. The appeal was dismissed. The High Court said that the first step in deciding whether a statutory authority owes a common law duty of care is to look at the words of the relevant statute ([20]). Where a statute authorises an authority to do something (in this case operate the electricity supply network) that does not impose a duty that the authority must do that thing – the presence of a statutory power does not give rise to a duty to exercise that power ([22]). A duty of care can arise where an authority has taken on some responsibility to exercise a particular power ([22]-[26]) or, where having decided to exercise a power, it fails to exercise reasonable care ([30)] or to put that another way, it does so ‘in a manner which has increased the risk of harm to persons whom it had the power to protect’ ([28]).
In this case (at [50]-[52]):
In direct terms, Western Power exercised its powers in performing its statutory functions of undertaking, operating, managing and maintaining the SWIS [ie South West interconnected system] electricity distribution system and any works, system, facilities, apparatus or equipment required for those purposes. In the exercise of those powers, Western Power’s service cable, fuses and meter were on Mrs Campbell’s land and, in particular, attached to her PA pole and those apparatus remained there as Western Power exercised its powers in performing its statutory functions of undertaking, operating, managing and maintaining the SWIS electricity distribution system. Western Power exercised those powers continuously.
Western Power’s exercise of those powers therefore created a relationship between it and all other persons within the vicinity of its electricity distribution system. And a critical feature of that relationship was that Western Power exercised those powers in a manner which created or increased the risk of harm to those persons – persons it had the power to protect. The PA pole only posed the risk that it did because Western Power had attached its live electrical apparatus to it. Identification of the precise point at which Western Power’s transportation of electricity using its distribution system was made to, or received by, the consumer, Mrs Campbell, was and is not determinative or necessary.
Western Power 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 – an electricity distribution system which it undertook, operated, managed and maintained in the discharge of its functions and powers by placing its apparatus on Mrs Campbell’s land. The common law imposed that duty in tort on Western Power which operated alongside the rights, duties and liabilities created by statute.
The critical issue was not who owned the PA pole but, on the dangers, posed by Western Powers actions in particular delivering electricity over what was an unsafe physical network. Further finding a common law duty of care was not inconsistent with the statutory provisions. The court said (at [56]):
… the Electricity Act 1945 (WA) … imposed two duties on Western Power as a network operator. First, a strict or absolute duty to maintain certain apparatus in a safe and fit condition for supplying electricity which applied to service apparatus belonging to Western Power which was on the premises of any consumer; and, second, a duty to take all reasonable precautions to avoid the risk of fire or other damage on a consumer’s premises “in the actual supply of electricity to the premises of a consumer … to the position on the said premises where the electricity passes beyond the service apparatus” of Western Power.
And at [57]-[58]
… the Electricity Regulations 1947 (WA) … imposed a constraint on Western Power, as a network operator, not to supply electricity to any premises unless, among other things, it had ensured that all of its service apparatus that would be used for supplying electricity to the premises was installed and maintained in accordance with the Electricity Act and was safe to us and that the connection of the supply of electricity to the premises did not cause, or was unlikely to cause, any consumers’ electric installations to become unsafe.
Western Power had the power to interrupt, suspend or restrict the supply of electricity (which included transport through a distribution system if, in its opinion, it was necessary to do so because of, among other things, potential danger… [and] Western Power as an energy operator was not bound to supply energy to any person, body or authority, including if in its opinion that supply would interfere with or adversely affect any supply system or would appear to be unsafe or dangerous to life or property.
The court upheld the finding of the Court of Appeal that Western Power had a broader duty to ensure the safety of its network by the regular inspection of the assets on the network regardless of who had legal title to those assets.
Discussion
In my initial post I said:
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 case remains interesting for this reason. Now that it has gone to the High Court the precedent value is significant. Electricity authorities, at least in Western Australia, are on notice that they have a duty that can sound in damages, to maintain all aspects of the network without regard to questions of title or ownership. Authorities in the past have resisted findings of negligence which allows them to plausibly deny responsibility and to leave the law in doubt that could help settlement negotiations. This case gives a clear statement at least regarding the law in WA.
For related posts see
- (The rather ironically titled) No legal action after Parkeville (WA) fire (December 4, 2014) – talking about a decision by EnergySafety not to take action against the owner of the pole, rather than civil litigation bu those affected by the fire. Ironically in the article discussed in that post it is said ‘Western Power is not responsible for private power poles…’. And later
Mr Unwin [an affected resident] said he believed Western Power should bear some responsibility for maintaining private power poles.
“Even if it is only the inspecting of private power poles, it is their lines that are coming in after all,” he said.
It appears that Mr Unwin was correct.
See also:
- Legal action over Parkerville fire (May 30, 2016); and
- Liability for 2014 Parkerville (WA) bushfire (April 4, 2019)
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Australian Emergency Law 
Fascinating! Moving forward, if Western Power now has that responsibility, how does it manage entry to private property? If Mrs Campbell refuses their entry for proper inspection (presumably increasing her own liability if the incident reoccurred), does Western Power have a right through necessity to inspect the pole anyway? Or would the reasonable step be communication that the service to that pole would be terminated if permission to enter the private property was not granted?
That issue was addressed in the judgment at [49]. The court said:
“Significantly, in this context, s 46(9) of the Energy Operators (Powers) Act provided Western Power with a broad right of access for the purposes of performing its functions:
“The owner or occupier of any land, premises or thing supplied with energy by an energy operator or in, on or over which any works of the energy operator are lawfully situate shall be deemed to have given consent to the energy operator to enter and re-enter thereon or therein at all reasonable times for the purposes of the performance of its functions in relation to any such supply or works and no notice under this Act is required unless an agreement in writing entered into by that owner or occupier with the energy operator in relation thereto otherwise provides.””
That is they can access the property without the owner’s permission so yes they have the power to inspect the pole anyway and yes they could terminate the supply if they cannot satisfy themselves that “its service apparatus that would be used for supplying electricity to the premises was installed and maintained in accordance with the Electricity Act and was safe to us and that the connection of the supply of electricity to the premises did not cause, or was unlikely to cause, any consumers’ electric installations to become unsafe” (see [57]-[58]) quoted in the post.