Thanks Neil.

 

Another nice demonstration of the divergence between English law and Australian law on liability for negligence (in analysis, but I don’t think in result visa vi Western Power).

 

For an English court, the statutory scheme would have come at the end of the duty question – i.e. does the statutory scheme exclude a duty of care the person would otherwise owe?

 

By my reckoning that makes the analysis simpler – do we owe duties to our neighbours that our electricity cables don’t actively start fires on their land? Answer – yes (cf. a duty to prevent fires on the land of others). Unless the statutory scheme excludes that duty for the electricity company, there would be a duty of care. That being so, the question is one of breach and remoteness.

 

I think it is Thiess’ liability which is more controversial to an English lawyer’s eyes. Clearly, Theiss owe a contractual duty to Western Power to (i.a.) take reasonable care in inspecting the pole. But does a contractor owe a duty of care to the landowner’s neighbours to prevent a fire occurring because of defective cables? If Theiss had never been on the scene, so to say, the fire would have occurred anyway. That seems like East Suffolk Rivers Catchment v Kent to me.

 

Best,

 

Matthew

 

 

 

Dear Colleagues;

The High Court of Australia (in a slightly unusual unanimous 5-member judgment) handed down a decision today on the duty of care owed by statutory authorities, in Electricity Networks Corporation v Herridge Parties [2022] HCA 37 (7 Dec 2022) https://eresources.hcourt.gov.au/showCase/2022/HCA/37 . The litigation arose out of property damage caused by a bushfire which was found to have started when a wooden pole on property owned by Mrs Campbell, which carried the electricity supply line from Western Power, collapsed and sparked. It was accepted that the pole was defective due to age, and that it should have been renewed and replaced some time previously. The operative negligence was a failure to inspect the pole properly by Thiess, who were independent contractors engaged by Western Power- see [5]-[6]. Thiess and Mrs Campbell were both found liable. The issue in this appeal was whether Western Power could also be held partly responsible.

 

Sadly for those of us interested in the doctrine of non-delegable duty (here the question whether WP could be held strictly liable for their contractor Thiess’ carelessness), the High Court did not examine that issue- as they upheld the decision of the WA Court of Appeal that WP could be held directly liable. (Those interested in NDD can see some comments on that doctrine here: https://works.bepress.com/neil_foster/97/ .) See [17]. FWIW I don’t think an NDD claim would have succeeded here but it was not an impossible claim.

 

But the question that the High Court did address was whether WP had a direct duty of care to those affected by the way it supplied power, and the “scope” of that duty. The WACA had framed the duty as follows (from [15) in the HCA judgement):

 

“Western Power owed to persons in the vicinity of its electricity distribution system a duty 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 electricity distribution system.”

 

The HC basically accepted this formulation. The appeal documents from WP had inserted references to “failure to inspect” and “control”, but the HC said that they were in effect trying to argue the findings on breach, when their appeal did not formally challenge the issue of breach. The court said that the distinction between duty and breach issues was important, and that they were not to be confused. I know that some academic writing has challenged this in the past, but for my part I agree that this is an important distinction and should be retained. In para [20}:

 

“in formulating a common law duty, it is important to keep in mind the distinction between the existence and content of the duty (who owes the duty, whom do they owe the duty to, and what kind of risks of harm must they take reasonable care to minimise or avoid?) and questions of breach (what were the reasonable precautions required in the circumstances, and did the person discharge the duty?)”

 

The footnote here includes a reference to Luntz et al, Luntz & Hambly's Torts: Cases, Legislation and Commentary, 9th ed (2021) at 145-149 [2.5.1]-[2.5.13], of which I and some other colleagues on this list are co-authors- but I would agree with it even if that were not the case! 😊 Another approving reference is to Barker et al, The Law of Torts in Australia, 5th ed (2011) at 418-419 [8.1], also stemming from some ODG colleagues.

 

At [21] the two guiding principles of the discussion are summed up in this way:

 

“there is no freestanding common law rule which fixes whether and when a common law duty of care upon a statutory authority might, or might not, arise, and that the starting point for the analysis of any such duty is the terms, scope and purpose of the applicable statutory framework”

 

The case is analysed as not one of “omission”- here WP, as a statutory body, had acted positively, as its statute empowered it to do, to supply power to consumers in specific ways. (See eg [25] for reference to this feature of the case.) But it was important to consider not only the specific powers actually exercised, but also the whole statutory scheme to see which powers might have been exercised. Here WP had no particular “policy” functions, so it was not necessary to rely on distinctions between policy and operational decisions ([31]).

 

There was a detailed consideration of the various powers and duties that WP had. In particular they had statutory power to enter private land to carry out their functions- see [49]. (Hence they could well have arranged for periodic inspections of the power poles located on premises like Mrs Campbell’s.)

 

On the duty of care issue, the court concluded:

 

[52] “Western Power had a duty to take reasonable care in the exercise of its powers, and the content of that duty relevantly required it 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 electricity distribution system – an electricity distribution system which it undertook, operated, managed and maintained in the discharge of its functions and powers by placing its apparatus on Mrs Campbell's land. The common law imposed that duty in tort on Western Power which operated alongside the rights, duties and liabilities created by statute”.

 

This duty was not inconsistent with any of its statutory obligations. It had full power to do all it needed to do, to carry out that duty. Since on the pleadings the finding of breach was not challenged, WP’s appeal failed.

 

Regards

Neil

 

 

 

 

 

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