Posted on 02 Jul 2021
In a decision handed down today, the Court of Appeal of Western Australia has found Western Power was liable for the January 2014 Perth Hills bushfire.
Western Power escaped liability in the original trial but has now been found negligent, along with its subcontractor Ventia (formerly Thiess) and the owner of the property upon which the fallen power pole was located.
The Court of Appeal has apportioned 50 per cent of the liability for the losses caused by the fire to Western Power, with 35 per cent to Ventia and 15 per cent to the landowner.
This comes after leading class action law firm Slater and Gordon led a successful group proceeding which helped the 189 bushfire victims attain compensation.
In particular, the Court found Western Power was negligent in failing to have a system of periodic inspection of “point of attachment” poles which, although privately owned, support Western Power’s cables and to which meters measuring electricity consumption are attached.
Slater and Gordon Practice Group Leader Rory Walsh said: “Unlike their NSW and Victorian counterparts, Western Power has long refused to accept responsibility for undertaking periodic safety inspections of these poles, and instead chose to argue that the responsibility to inspect the poles rested with private landowners.”
“There is estimated to be more than 100,000 uninspected poles across the network, the majority of which are wooden and situated in rural environments, although a precise number is unknown,” Mr Walsh said.
Mr Walsh said that as a consequence of the deliberate corporate policy of Western Power, neither the utility or the state regulator has any knowledge of the age of these power poles, their current condition, their service life expectancy, the safety risks posed by individual attachment poles or even their exact number.
In its judgment the Court of Appeal noted (at paragraph 167):
In that context, in our view, a reasonable operator would have undertaken periodic inspections of wooden poles more than 15 years old, especially in rural areas where there was an elevated risk of bushfires. The risk of harm was foreseeable and known. The probability that harm will occur if point of attachment poles are not inspected is high, approaching certainty over time, given the known limited lifespan of wooden poles. The likely seriousness of the resulting harm is grave, with a bushfire in a high fire-risk area likely to imperil the lives, health and property of a large number of persons in the vicinity of the failed pole. The response to the magnitude of the risk of harm from failure of wooden poles which, in our view, would be adopted by a reasonable network operator in Western Power's position would be to periodically inspect all poles supporting its electrical apparatus irrespective of whether it owned the poles
Mr Walsh noted that the state regulator was aware, not only that Western Power was refusing to accept responsibility for inspecting these poles, but also that private landowners were often both unaware of the need to inspect the poles and of the significant bushfire risks presented by aging, often untreated, wooden power poles in a rural setting.
Western Power had argued that its legal responsibility was limited by legislation to ensuring the safety of its power cables and equipment but not the privately owned poles upon which those power cables and equipment were attached.
“Now that this artificial legal argument has been rejected by the Court of Appeal, Western Power should stop evading its safety obligations and get on with fixing the problem before the coming fire season,” Mr Walsh said.
“That is what the West Australian public will expect of it and that process should start immediately.”
In its judgment the Court of Appeal noted (at paragraph 353):
In our view, as between the three defendants, Western Power is responsible for the greatest extent of the plaintiffs' damage and loss. Western Power's breach of its duty continued over many years, during which it failed to have any system for periodically inspecting point of attachment poles and during which the deterioration of the PA pole was discoverable by inspection. Western Power breached that duty in a context where it actually appreciated the nature and extent of the danger of the ignition and escape of fire posed by a collapsing point of attachment pole and the limited lifespan of an untreated wooden pole of that kind. Western Power also had the greatest knowledge, technical means and resources to deal with that risk.
Consequences of the appeal
Slater and Gordon anticipates further compensation will now be available to the Parkerville bushfire plaintiffs as a result of the Court of Appeal’s decision.
In particular, compensation unable to be recovered from the existing defendants or that had been withheld from the bushfire victims in order to pay Western Power’s costs of the original trial can now be paid to the plaintiffs.
“While Slater and Gordon are very pleased with this result, we remain critical of the now-overturned attempts by Western Power to seek orders to recover the State’s legal costs of the initial trial from bushfire victims, in circumstances where the State’s subcontractor, and now the utility itself, had been found responsible for causing the bushfire,” Mr Walsh said.
“The attempt to take money out of the pockets of victims who had already lost so much represented the worst kind of corporate bullying.”
“The State Government utility should have been focused on reducing the bushfire risk in advance of the next bushfire season, rather than wasting public money on pursuing cost recovery from the victims of the last big bushfire.”
“Having now failed in its attempt to evade liability, Slater and Gordon calls upon the State Government to ensure that the additional compensation arising from the Court of Appeal decision is promptly provided to the bushfire victims.”
Mr Walsh said that in the case of the 2011 Margaret River bushfires, the State Government agreed to pay compensation within 12 months of the disaster.
“The Parkerville community has had to endure a long and hard-fought legal battle for nearly seven years to get proper compensation,” he said.
“Having initially won their case and then having to fight and win an appeal, our clients should not have to wait a day longer to be fully compensated for all of their losses and legal costs.”
Other key sections from the Court of Appeal judgment
Paragraph 171 Secondly, we also do not accept Western Power's submission that account is to be taken of the lack of information in Western Power's possession as to the number, age and condition of point of attachment poles supporting its electricity distribution system. That lack of information is a product of the view which Western Power and its predecessors have taken as to the extent of their duty to maintain point of attachment poles. A reasonable network operator in Western Power's position which undertook periodic inspections of point of attachment poles would have acquired that information over time. We do not accept that a reasonable network operator would use lack of information about point of attachment poles as a reason for not establishing and maintaining a system of periodically inspecting those poles.
Paragraph 356 Having regard to all of the circumstances of the case we consider the following apportionment of the defendants' liability to be just, having regard to the respective defendant's responsibility for the plaintiffs' damage and loss: Western Power 50%, Thiess 35%, Mrs Campbell 15%.