AUSTRALIA – The Supreme Court of Western Australia has found a network authority’s contractor and a private landowner liable in both negligence and nuisance for property damage arising out of the 2014 Parkerville bushfire. Matt McDonald led a Hall & Wilcox team acting for a large group of insured plaintiffs and their insurers in two of the four proceedings, that were heard concurrently.
The Parkerville bushfire started on 12 January 2014 when a privately owned jarrah power pole failed due to age, fungal rot and termite damage, bringing down a live conductor with it. The plaintiffs sued the network operator (Western Power), its contractor (Thiess) and the person who owned the property and the pole.
Approximately 6 months before the Parkerville bushfire, in July 2013, Western Power appointed Thiess to carry out works on its distribution line which involved detaching and reattaching a service cable from and to the pole. Thiess claimed that during the course of these works, it conducted a thorough inspection of the pole and it was structurally sound and safe for continued service.
The Court disagreed. Justice Le Miere accepted the evidence of the various timber and termite experts that the pole was seriously and obviously defective from rot and termite damage when it was supposedly inspected by Thiess, approximately 6 months prior to it causing the bushfire. Accordingly, the Court found that Thiess failed to exercise due care and skill in the inspection of the pole and failed to adequately train and supervise its staff. This finding was not surprising given that the Thiess employee who inspected the pole conceded under cross examination that his evidence in chief was a reconstruction (rather than an actual memory) and also that he had never been trained in how to conduct an effective timber pole inspection in his many years of service for Thiess.
The Court found that the landowner was negligent for failing to ensure the pole (which had been on her property for more than 30 years) was maintained in a safe and serviceable condition. She took no precautions to satisfy herself that the pole was safe (such as having it examined by a pole inspector). The Court also found that both Thiess and the landowner participated in the creation of a nuisance by failing to inspect the pole (adequately or at all) and by failing to replace it when it became unserviceable.
Western Power was cleared of negligence. While Justice Le Miere accepted that Western Power owed a duty of care to the plaintiffs to take reasonable care to inspect the pole prior to the works being undertaken, that duty was found to be delegable. Further, the Court found that Western Power had discharged its duty of care by taking reasonable steps to engage and instruct Thiess to do the work. Western Power’s duty did not extend to checking that people conducting pole inspections on its network were adequately trained.
Liability was apportioned 70% against Thiess and 30% against the landowner.
This case raises a number of important legal principles which may well be the subject of appeal by the unsuccessful defendants. In the event of an appeal it will be interesting to see whether the Court of Appeal agrees that Western Power’s duty of care is so narrow that it was not even obliged to check that people conducting pole inspections on its network were adequately trained.