An electricity supply company (Powercor) was not negligent or in breach of duty for failing to prune or remove a gum tree which fell, hit a powerline, which dislodged an electrical conductor that ignited a damaging bushfire.
- Whether the plaintiff’s claim should, pursuant to section 62 and 63 of the Civil Procedure Act 2010 (Vic) be struck out summarily;
- Whether the effect of Powercor’s duties under the Electrical Safety Act 1998 (Vic)1 (Act) required it to prune or remove the blue gum, and whether Powercor owed the plaintiffs a duty of care to ensure that all parts of its powerline were safe and operated safely in the foreseeable operating conditions.
A group of individuals (the plaintiffs) commenced a class action against Powercor in relation to the St Patrick’s Day bushfire on 17 March 2018. That bushfire ignited when a blue gum tree located within a commercial plantation, fell onto a Powercor conductor attached to a power pole; when the conductor hit the ground, it discharged electricity which ignited the nearby vegetation and created the seat of the bushfire.
The plaintiffs alleged that, by reason of Powercor’s failure to prune or remove the blue gum prior to the 2017/2018 summer, Powercor created a fire hazard which ultimately allowed the fire to propagate and damage the plaintiffs’ properties and/or cause them personal injury.
The Decision at Trial
Powercor argued that the plaintiffs’ claim had no real prospects of success in circumstances where:
- The tree in question was outside the 3.9m clearance space mandated by the Line Clearance Code in relation to the Powercor assets in question. Further, out of an abundance of caution, Powercor created a 20m clearance space.
- While it was theoretically possible that the bluegum could fall on the Powercor assets (i.e. despite being outside the clearance zone, the 27m tall blue gum, if it fell, it could then have struck the Powercor assets), that scenario was not reasonably foreseeable.
- Powercor referred to its Vegetation and Reference Guide 2017 (Guide) which it provided to contractors engaged to inspect vegetation in the vicinity of its supply network assets. That Guide provided that a tree should only be pruned and/or removed in the event that tree showed some obvious or visible sign of defect, or otherwise being likely to fall onto, or coming into contact with, any power line or power infrastructure.
- Powercor was also under an obligation to comply with the Code of Practice for Powerline Clearance (Vegetation) Regulations 1996, which compel Powercor to leave trees as aesthetically pleasing as possible to reflect their natural form.
The court summarily dismissed the claim on two bases. The first and primary basis was that the novel duty of care pleaded by the plaintiffs was inconsistent, and even clashed, with the legislative intention of the Act. Referring to the Explanatory Memorandum, the court found that Parliament did not intend to create a statutory duty upon power suppliers in relation to the clearing of vegetation from around supply network assets; Parliament’s intent was to require power suppliers to create their own code for such clearance which, in this case, Powercor did. The court also applied the “salient features test”2 and found that the duty pleaded by the plaintiffs failed that test.
Second, even if the court was wrong on the legislative intent issue, the loss and damage in question was not reasonably foreseeable. The blue gum in question was healthy and not defective in any obvious way,3 and the plaintiffs did not plead or provide any Particulars as to why the blue gum fell. Whilst it was not clear whether Powercor’s contractors had inspected the blue gum in question, there was no reason to believe that they would have identified it as a hazard in light of the contents of the Guide.
Implications for you
The decision is good news for insurers. It demonstrates a greater judicial willingness to engage with law and objective facts which underlie the pleadings. Prior to the introduction of the Civil Procedure Act 2010 (Vic), courts were highly reticent to order summary judgment in any proceeding that did not turn on a matter of contractual interpretation. In this case, the Court was willing to undertake some limited fact-finding in order to find that the plaintiffs’ case had no real prospects of success.
This is a welcome result, particularly in the area of group proceedings/class actions, which are both notoriously cost and time consuming for both insurers and their insureds
1Which require Powercor to minimise, as far as practicable, (1) hazards and risks to property and the safety of a person arising from the supply network, and (2) the risk of bushfire arising from the supply network.
2Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 at 676.
3The plaintiffs did not plead that the blue gum was in any way compromised, damaged or unhealthy.