Article by: Billy Duan

Western Power found liable for the 2014 Parkville Bushfire – When does a Public Authority owe a Duty of Care?

Overview

On 7 December 2022, the High Court of Australia upheld the decision of the Supreme Court of Western Australia Court of Appeal that Electricity Network Corporation trading as Western Power (“Western Power”) has a duty to avoid or minimise the risk of injury to all other persons within the vicinity of its electricity distribution system from the ignition and spread of fire in connection with the delivery of electricity. Western Power was also found liable for negligence by breaching its duty of care in exercising its statutory powers.

Background

This case concerned a jarrah point of attachment pole (“PA Pole”) which was installed by Mrs Campbell’s late husband in 1983. Western Power has been supplying electricity to Mrs Campbell through service cables attached and connected to this PA Pole. Whilst Mrs Campbell owned and PA Pole, Western Power owned the service cables.

Western Power engaged Thiess Services Ltd (“Thiess”) to construct, maintain and manage aspects of Western Power’s distribution system. In July 2013, a crew from Thiess was tasked to remove and replace the service between the PA Pole and one of Western Power’s poles.

In 2014, the PA Pole fell because of fungal decay and termite damage and ignited dry vegetation, causing the 2014 Parkville bushfire. A number of parties who suffered damage during the bushfire commenced legal proceedings against Mrs Campbell, Thiess and Western Power.

At first instance, the Supreme Court of Western Australia found Thiess had failed to comply with the industry standard, namely to inspect and check the PA Pole to identify signs of deterioration and digging around the PA Pole to detect surface decay and termite attack. The Supreme Court found both Thiess and Mrs Campbell were liable for negligence and nuisance and attributed 70% of the liability to Thiess and 30% to Mrs Campbell. However, all claims against Western Power were dismissed because the Supreme Court found it had discharged its duty of care.

The Court of Appeal’s Decision

This decision was appealed and the West Australian Court of Appeal found Western Power:
1. owed a broader duty of care to persons in the vicinity of its electrical distribution system in terms of its temporal scope, that is even if work was not done in the area; and
2. owed to persons in the vicinity of its electrical distribution system a duty to take reasonable care 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; and
3. Failed to perform periodical inspection of PA poles owned by consumers.

The liabilities were apportioned as follows:
1. 50% – Western Power
2. 35% – Thiess
3. 15% – Mrs Campbell

The High Court’s rulings: The Duty of Care owed by a Statutory Authority

The High Court’s starting position was that there is not an established principle on whether or when a common law duty of care of a body created by statute can arise, but the analysis must start from the statutory framework under which the public authority operates. A statutory authority may still owe a duty if it exerts “control” and creates a relationship with a class of persons in the actual exercise of its powers.

The High Court examined the relevant rules and legislations that govern Western Power and how Western Power has been exercising the power granted under those statutes. In upholding the Court of Appeal’s decision, the High Court held that:
1. Western Power connected its services cable to the PA Pole. This was undertaken within the powers granted to Western Power. It was because of their work, the persons within the vicinity were subject to further risks and potential harm;
2. Western Power is required to maintain its equipment, e.g. the service cables; and
3. Western Power had the power to enter into the land and premises of its consumers in order to carry out its functions of constructing and maintaining its electricity distribution system.
4. Western Power created a relationship with others where a common law duty of care can be attached.

Key Takeaways from this High Court decision

1. A statutory authority may nevertheless owe a duty of care even if the governing statutes do not expressly provide one; and
2. The existence and extent of a duty of care owed by a statutory authority can be found by reference to the wording used in the statutory framework and the manner of the statutory authority in performing its functions.

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This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.