In December 2022, the High Court unanimously dismissed Western Power’s appeal in the Parkerville Bushfire litigation, bringing an end to complex and extensively litigated proceedings.
WA firm Civic Legal represented a major insurer in some 100 or so subrogated claims by its insureds against Western Power and the other two defendants. National and international law firms like Slater and Gordon and DLA Piper represented the other five parties and groups.
The case was notable for being the first WA Supreme Court trial to be live-streamed on the internet. It was also one of the first cases in WA where half a dozen expert witnesses gave evidence concurrently.
The Parkerville bushfire occurred in January 2014 when a wooden power pole fell due to fungal decay and termite damage. This caused the spark that resulted in the fire that caused tens of millions of dollars of damage to over 500 homes and gained substantial media attention.
Mrs Campbell, a private landowner, owned the power pole in question, which was situated on her land. Western Power attached its electrical cable and apparatus to that pole to distribute electricity to her property. Western Power had contracted Thiess to undertake maintenance works on such poles. Thiess did so on the pole some months earlier.
Supreme Court decision
At the end of the WA Supreme Court trial, Supreme Court judge Hon. Rene Le Miere found Thiess and Mrs Campbell liable in damages for negligence and nuisance. Thiess was found to have inadequately inspected the pole. Had it done an adequate inspection, it would have found the decay and damage and would presumably not have proceeded with the works as it did. All claims against Western Power were dismissed.
WA Court of Appeal decision
Various appeals and cross-appeals were made by the parties to the WA Court of Appeal. The WA Court of Appeal held that Western Power, Thiess and Mrs Campbell were responsible for the losses caused by the bushfire. Liability was apportioned 50% 35% 15%, respectively.
High Court of Australia – final decision
Western Power further appealed to the High Court of Australia. The High Court of Australia dismissed the appeal.
Western Power had therefore failed to reinstate the original judge’s decision that it was not liable at all, and the WA Court of Appeal’s decision stands.
What are the implications for local government?
At its heart, this complex matter concerns negligence and nuisance and the Civic Liability Act 2002 (WA). It was a case about duty of care, but with a focus on asset management.
The case is a reminder to all entities, whether local governments or not, when it comes to risk assessment and risk management procedures. The consequence of an event can be very significant when compared to the apparently low probability of a major adverse event occurring.
This decision is a reminder to all organisations, including local governments, not to be complacent about the routine tasks of risk management. Organisations with assets should be:
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