Power down: High Court confirms electricity distributor is partly liable for Parkerville bushfire

In a decision last week, the High Court has confirmed that Western Power is liable in negligence for damage caused by the Parkerville bushfire in 2014, providing important guidance on the principles for determining whether a public authority owes a common law duty of care in exercising its statutory functions.

The unanimous decision: [1]

• upheld the Western Australia Court of Appeal’s finding that Western Power owed a duty of care in exercising its statutory powers. Western Power was required to avoid or minimise the risk of injury to all other persons within the vicinity of its electricity distribution system, and loss or damage to their property, from the ignition and spread of fire in connection with the delivery of electricity.  The duty extended to all property over which electricity was supplied
• found that the duty arose as Western Power had “stepped into the arena” and exercised its statutory powers in undertaking, managing and maintaining the electricity distribution system. Western Power’s activities arising from the exercise of those functions gave rise to the risk of harm if a point of attachment pole (PA pole) on private property collapsed. This created a relationship with all other persons within the vicinity, and
• found that the broader common law duty of care “operated alongside the rights, duties and liabilities created by statute”.

The decision is an important reminder for public authorities to consider the potential scope of liability risk in exercising their statutory functions.  The risk may extend to property that is not owned by a public authority itself. This is an issue which is particularly relevant to public authorities who have statutory powers entitling them to access private land or premises and improve works and maintain facilities if necessary or convenient for the exercise of their statutory functions. 

Background

Western Power operates an electricity distribution system in Western Australia. In some areas, service cables run from the nearest network distribution pole to privately owned PA poles to deliver electricity to individual customers.

A network distribution pole was connected via service cables to a PA pole on Mrs Campbell’s land. In 2013, Western Power engaged Thiess to replace the network distribution pole adjacent to Mrs Campbell’s PA pole. This altered the load on the PA pole. On 12 January 2014, the PA pole fell, igniting the Parkerville bushfire. Representative proceedings were commenced by owners of properties destroyed or damaged by the fire seeking damages in negligence or nuisance allegedly caused by Western Power, Thiess and Mrs Campbell.  The primary issue was the defendants’ liability for the failure of the PA pole and the subsequent fire.

Mrs Campbell and Thiess were held liable in negligence at trial.  Liability was apportioned 30:70 respectively.

The Court of Appeal found that Western Power:

• owed a common law duty of care to persons in the vicinity of its electrical distribution 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 throughout its distribution system, and
• breached this duty by failing to have a system for undertaking periodic assessments of PA poles owned by consumers.

The Court of Appeal apportioned 50% of the liability to Western Power, 35% to Thiess, and 15% to Mrs Campbell.[2]

The High Court’s decision: Scope of a public authority’s duty of care

Western Power challenged the Court of Appeal’s findings in relation to the duty of care.

The High Court unanimously dismissed the appeal, concluding that Western Power failed to address that it had “stepped into the arena” in exercising its functions, which created a relationship between it and other persons within the vicinity of its electricity distribution system. While the PA pole was owned by Mrs Campbell, the critical feature of this relationship was that the activities arising from Western Power’s exercise of its functions gave rise to the risk of harm.  Western Power could not limit its duty to exercise reasonable care only to its own property over which it exercised physical control.

The High Court reiterated that:

• There is no standalone common law rule which determines whether a public authority owes a duty of care.  
• The analysis of whether a duty is owed must commence with the statutory framework under which the public authority operates. This includes an assessment of the statutory powers that were in fact exercised and those that could have been, but were not, exercised.
• In assessing the duty, “it is often helpful to ask whether the statutory authority has exercised its powers to “intervene in a field of activity” in a manner which has increased the risk of harm to persons whom it had the power to protect”.

In this case, Western Power had connected Mrs Campbell’s premises to the distribution system by fixing the service cable, fuses and meter to the PA pole, and provided power.  This was undertaken in the exercise of Western Power’s statutory powers in the performance of its functions.  The statutory framework empowered Western Power to access land or premises to perform its functions of undertaking, operating, managing and maintaining its electricity distribution system.  The PA pole only posed the risk that it did because Western Power had attached live electrical equipment to it.  It was incorrect to focus on control or ownership of the PA pole: the real issue was Western Power’s activities arising from the exercise of its statutory powers that gave rise to the risk of harm.

Key takeaways

This judgment highlights that:

• A public authority may owe a common law duty of care in the exercise of its statutory functions.
• Statutory authorities may have a duty to inspect property owned by third parties, in circumstances where they have created a relationship between themselves and the third party in exercising their statutory functions. This is more likely where they have express powers to enter land or premises in the exercise of their statutory functions.

The judgment is Electricity Networks Corporation v Herridge Parties [2022] HCA 37.