The High Court has upheld a duty of care owed by a statutory corporation responsible for maintaining an electricity distribution system to persons within the vicinity of its system which obliges them to take reasonable care to avoid or minimise the risk of injury to those persons.
In issue
- The primary issue to be determined by the High Court was whether Western Power owed, to persons in the vicinity of its distribution system, a duty to take reasonable care to avoid or minimise the risk of injury, damage to property or loss resulting from the ignition and spread of fire in connection with the delivery of electricity through that system.
The background
Western Power is a statutory corporation responsible for operating and maintaining the electricity distribution system known as the South West interconnected system (SWIS), which extends between Kalbarri, Albany and Kalgoorlie in Western Australia. Thiess, a contractor which specialises in maintaining electricity distribution system installations, was contracted by Western Power in July 2013 to undertake works in the vicinity of Mrs Campbell’s property, including replacing Western Power’s termination pole next to Mrs Campbell’s property. A service cable ran from the termination pole adjacent to Mrs Campbell’s property across the property boundary to the point of attachment pole (PA pole) on Mrs Campbell’s property.
On the 12th of January 2014, the PA pole fell to the ground because of fungal decay and termite damage, igniting a fire which eventually destroyed 57 homes and burnt 392 hectares of land (the Parkerville bushfire).
Four sets of proceedings were brought in the Supreme Court of Western Australia by owners of properties damaged or destroyed by the Parkerville bushfire claiming damages for loss and damage as a result of the negligence and/ or nuisance of Western Power, Thiess and Mrs Campbell (the defendants).
The decision at trial
The trial judge found Thiess and Mrs Campbell were liable in negligence and nuisance to the plaintiffs, apportioning liability between them at 70 per cent to Thiess and 30 per cent to Mrs Campbell.
The trial judge held that Thiess owed the plaintiffs a duty to take reasonable care to perform its work on connected assets so that the assets were in a safe and fit condition for use in the supply of electricity, and that Thiess had breached that duty by failing to adequately train and supervise the line crew and failing to exercise due care and skill in inspecting the PA pole in accordance with its contractual obligations and industry standards. It was found that Mrs Campbell owed the plaintiffs a duty to take reasonable care to inspect and maintain the PA pole in a safe and serviceable condition, and that she had breached that duty by taking no steps to procure the necessary inspections of the PA pole.
All claims against Western Power were dismissed – the trial judge found Western Power owed the plaintiffs a duty of care but that it had discharged its pre-work inspection duty of care by engaging and instructing Thiess to carry out the relevant work, including the inspection of the PA pole. The trial judge was not satisfied that a reasonable person in the position of Western Power would have taken any additional steps to implement systems for training or instructing line crews to conduct pre-work pole inspections in accordance with industry practice.
On appeal, the Western Australian Court of Appeal (WACA) found that Western Power owed a broader duty of care to the plaintiffs than that contemplated by the trial judge and was therefore responsible for performing periodic maintenance on PA poles. The broader duty of care was described as a duty to persons in the vicinity of the SWIS system 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 system.
The WACA apportioned 50 per cent of liability to Western Power, 35 per cent to Thiess and 15 per cent to Mrs Campbell.
The decision on appeal
The High Court unanimously rejected Western Power’s appeal, finding that Western Power did owe the plaintiffs the broader duty of care posited by the WACA, and made orders dismissing Western Power’s appeal.
The High Court held that, according to the terms, scope and purpose of the applicable statutory scheme, Western Power did owe the plaintiffs the broader duty of care and this duty was not inconsistent or incompatible with the statutory functions and powers imposed on it.
Western Power was a statutory authority armed with the statutory functions and powers necessary to enable it to meet its functions of maintaining the SWIS electricity distribution system and its assets while also acting as a commercial body. It owed persons such as the plaintiffs a broad duty to take reasonable care in the exercise of its powers because it had 'stepped into the arena' by exercising its statutory powers in the discharge of its functions and creating or increasing a risk of harm to persons in the vicinity of its SWIS system. This created a relationship between it and the plaintiffs which required Western Power to take reasonable care to avoid or minimise the risk of injury to them.
Western Power had affixed its apparatus to the PA pole at various points, and continued to use the apparatus, pursuant to broad powers to perform its functions, specific powers to cause its distribution system to be supported by affixing it to any structure and its duty to connect and energise premises with power. Western Power was provided with a right of access onto premises to perform its functions by section 46(9) of the Energy Operators (Powers) Act, and it used this power by having its service, cables, fuse and meter on Mrs Campbell’s land.
Finally, a critical feature of the relationship between Western Power and persons in the vicinity of the SWIS system was that Western Power had exercised its powers in a manner which created or increased the risk of harm to those persons. The PA pole only became a risk because Western Power had attached live electrical apparatus to it.
Ultimately, the High Court rejected Western Power’s core contention that a broader duty of care was inappropriate because the PA pole was not owned or controlled by Western Power because it was inconsistent with the fact that it had stepped into the arena by exercising specific statutory powers in performing its statutory functions and had the deemed consent of the owner to conduct works on the land and things annexed to the land.
The High Court found the broader duty was not inconsistent or incompatible with the statutory functions or powers imposed on Western Power as a majority of those functions involved maintaining the SWIS system or taking precautions to avoid the risk of fire and other dangers. It was also found that Western Power had ample power to discharge its duty of care. It had the power to enter premises and maintain or replace assets, to require a consumer to make adjustments to the manner of operating electrical equipment and to do all things necessary for maintaining any supply system.
Implications for you
This decision confirms the applicable principles for determining the scope and existence of a common law duty of care owed by statutory authorities to a specific class of persons. The broader duty of care upheld by the High Court also may increase the level of precautions which must be taken by bodies such as statutory corporations in maintaining potentially dangerous equipment such as electricity supply apparatus.
Electricity Networks Corporation v Herridge Parties & Ors [2022] HCA 37.
