Public Authority’s attempt to limit its liability goes up in flames

04 August 2021

Case description

The Western Australian Court of Appeal clarified the interaction between the statutory and common law duties of Western Power as operator of the state’s electricity distribution system, in respect of its duty of care to avoid or minimize the risk of harm to persons from fire arising from use of its system.

The background

The case was brought by a number of Plaintiffs in respect of damages sustained as a result of a bushfire sparked when a jarrah pole supporting an electrical cable fell, igniting bushland on 12 January 2014. Works undertaken near the pole in July 2013 failed to identify that the pole was not in a fit and safe condition for use in the electrical distribution system. The Defendants were: the owner of the pole on her private property, Mrs Campbell; Electricity Networks Corporation t/as Western Power (WP) as owner of the electrical cable and electricity distribution network; and Thiess Services Pty Ltd (Thiess), a contractor engaged by WP to undertake works in the vicinity of the pole in July 2013.

At first instance the trial judge found Mrs Campbell (30%) and Thiess (70%) liable in negligence and nuisance, while the claims against WP were dismissed.

Issues before the Court of Appeal

The Court of Appeal was required to consider a number of issues but this case note focuses on WP’s duty of care as a public authority, and the interaction between its common law and statutory duties.

Court of Appeal Decision

In allowing the appeal in part the Court of Appeal, inter alia:

  1. Observed that the case involved alleged negligent exercise of statutory powers by a public authority, rather than a failure to act.
  2. Found the Electricity Act (which required inspection of WP’s own equipment but did not extend to privately owned equipment utilised by WP) was not incompatible with the existence of a common law duty by WP to persons in the vicinity of its distribution system to take reasonable care to avoid or minimize the risk of harm from fire (in connection with the delivery of electricity through its distribution system). The discharge of the duty required WP to periodically inspect attachment poles such as those owned by Mrs Campbell.
  3. Determined that WP breached its common law duty of care by failing to have a system for inspection of attachment poles. This breach was causative of the Plaintiffs’ loss. WP was thus a concurrent wrongdoer with Mrs Campbell and Thiess.
  4. Did not find that WP owed a non-delegable duty to ensure its independent contractors exercised reasonable care or that WP was negligent in its selection, instruction or auditing of Thiess’ work.
  5. Found that the nuisance claims were apportionable claims per S5AI of the Civil Liability Act 2002 (WA). The Court apportioned liability against WP 50%, Thiess 35% and Mrs Campbell 15%.

Implications for you

The case demonstrates that Courts may be willing to impose a common law duty on public authorities to implement a system of inspection or maintenance where the exercise of their powers and functions involves privately owned property, beyond the scope of their statutory duty.

Herridge Parties -v- Electricity Networks Corporation t/as Western Power [2021] WASCA 111

Ask us how we can help

Receive our latest news, insights and events
Barry Nilsson acknowledges the traditional owners of the land on which we conduct our business, and pays respect to their Elders past, present and emerging.
Liability limited by a scheme approved under Professional Standards Legislation