Full Court Minute Books

Case P5/2022

Electricity Networks Corporation Trading as Western Power v. Herridge Parties & Ors

Case No.

P5/2022

Case Information

Lower Court Judgment

02/07/2021 Supreme Court of Western Australia (Court of Appeal)(Buss P, Murphy & Mitchell JJA)

[2021] WASCA 111

Catchwords

Torts – Negligence – Duty of care – Breach of duty – Statutory authority – Where Western Power ("WP") statutory authority established under Electricity Corporations Act 2005 (WA) with functions including management, provision and improvement of electricity transmission and distribution services in South West Interconnected System ("SWIS") – Where service cable owned by WP ran from WP's termination pole into mains connection box secured adjacent to top of point of attachment pole ("PA pole") on Mrs Campbell's property – Where PA pole owned by Mrs Campbell – Where electricity passed from wires of WP's service cable to wires of Mrs Campbell's consumer mains cable – Where WP had systems for regular inspection of WP's network assets, but did not regularly inspect or maintain consumer-owned PA poles – Where WP engaged Thiess to replace WP's network poles in Parkerville area, including termination pole, but inspection did not comply with industry standards or Thiess' contractual obligations – Where PA pole fell causing electrical arcing, igniting dry vegetation around base of pole – Where resulting fire spread, becoming Parkerville bushfire, and causing property damage – Where primary judge found WP owed duty to take reasonable care to inspect PA pole to ascertain whether safe and fit condition for supply of electricity before and when undertaking works on pole, but duty discharged by engaging Thiess – Where trial judge apportioned liability for losses 70% as to Thiess and 30% as to Mrs Campbell, and dismissed claims against WP – Where Court of Appeal formulated duty as one owed to persons in vicinity of SWIS to take reasonable care to avoid or minimise risk of injury, and loss to property, from ignition and spread of fire in connection with delivery of electricity through distribution system – Where Court of Appeal held WP had breached duty by failing to have system in place to respond to risk of harm and apportioned liability for losses 50% as to WP, 35% as to Thiess and 15% as to Mrs Campbell – Whether WP, as statutory authority with defined duties, owes common law duty to take reasonable care to avoid fire, discharge of which would oblige WP to exercise discretionary statutory powers in relation to property not owned or controlled by WP – Whether duty of care asserted inconsistent with statute – Proper test for inconsistency between common law duty and statutory scheme which regulates statutory authority.

Documents

17/03/2022 Hearing (SLA, Canberra and remote connection)

30/03/2022 Notice of appeal

05/05/2022 Written submissions (Appellant)

05/05/2022 Chronology (Appellant)

01/06/2022 Written submissions (Second Respondents)

01/06/2022 Written submissions (Fifth Respondent)

02/06/2022 Written submissions (First Respondents)

02/06/2022 Written submissions (Fourth Respondent)

23/06/2022 Reply

06/09/2022 Hearing (Full Court, Canberra) (Audio-visual recording)

06/09/2022 Outline of oral argument (Appellant)

06/09/2022 Outline of oral argument (Fourth Respondent)

06/09/2022 Outline of oral argument (Fifth Respondent)

07/09/2022 Hearing (Full Court, Canberra)

07/09/2022 Outline of oral argument (First Respondents)

07/09/2022 Outline of oral argument (Second Respondents)

08/09/2022 Hearing (Full Court, Canberra)