Authors
Simon Lusk – Director
Sanjay Selvakumaran – Director
In a unanimous decision delivered on 7 November 2022, the High Court has restated the principles governing the imposition of a common law duty of care on statutory authorities.
Background
The case concerned the 2014 Perth Hills bushfire.
The bushfire started when a wooden power pole located on private property owned by a Mrs Campbell fell to the ground causing electrical arcing and igniting vegetation around the base of the pole. The resulting bushfire caused significant property damage.
The pole had been installed by Mrs Campbell’s late husband and had been in place since at least 1983. It failed due to fungal decay and damage caused by termites.
Western Power, a statutory corporation, operated the electricity distribution system that delivered electricity to the pole. Western Power did not own the pole.
Thiess Services Ltd was an independent contractor engaged by Western Power to construct, maintain and manage aspects of Western Power’s electricity distribution system, including certain works conducted in the vicinity of the pole approximately 6 months before it collapsed.
Four proceedings were brought in the Supreme Court of Western Australia by owners of properties damaged or destroyed by the bushfire claiming damages for loss and damage as a result of the negligence of, or nuisance caused by, Western Power, Thiess and Mrs Campbell.
The trial judge found Thiess liable for failing to properly inspect the pole when it conducted its works. Mrs Campbell was found liable for failing to arrange for appropriate inspections of the pole.
The claims against Western Power were dismissed. Although Western Power owed a duty of care to ascertain whether the pole was in a safe and fit condition before or during the performance of works, the trial judge found that that Western Power discharged its duty by engaging a competent contractor.
The Court of Appeal cast the duty owed by Western Power in broader terms. The duty imposed by the Court of Appeal was a duty to take reasonable care to avoid or minimise the risk of damage from the ignition and spread of fire in connection with the delivery of electricity through its electricity distribution system. Thus, the duty was not limited to times during which Western Power was performing works on the system. The Court of Appeal held that Western Power breached its duty by failing to have a system for the periodic inspection of wooden poles such as the one located on Mrs Campbell’s property.
Decision
In the High Court, Western Power challenged the imposition on it of that broader duty of care. Western Power argued that its functions did not give rise to a relationship, especially as concerns control, which supported the imposition of the broader duty; and the broader duty was inconsistent with the statutory scheme.
The High Court dismissed the appeal holding that Western Power owed the broader duty articulated by the Court of Appeal. In so doing, the Court delivered a pithy restatement of the following principles for determining the existence or otherwise of a common law duty of care allegedly owed by a statutory authority:
- 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: [19];
- Generally, the common law will not superimpose a common law duty on a statutory power where the authority is under no obligation to exercise the power: [22]. However, an authority may, by its conduct, assume a responsibility to exercise the power in which case the authority may owe a common law duty to exercise a power which the authority is under no statutory obligation to exercise: [23];
- Because the common law duty attaches to the manner of the exercise of powers, the identification of the statutory authority’s powers that were in fact exercised is critical: [28]. The starting point of any inquiry about whether or when a statutory authority owes a common law duty to take reasonable care will be the statute and where the authority has “entered the field” or has “stepped into the arena” by the exercise of statutory powers, what statutory powers it has exercised and in what circumstances: [32];
- 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: [28];
- A duty cannot arise where it would be inconsistent or incompatible with the statutory powers or duties imposed on the statutory authority or it would be incoherent with the statutory framework: ]27];
- The reasonable precautions that are required to discharge that common law duty in the exercise of those powers will often depend upon the nature of the powers which are to be exercised and the circumstances in which they will be exercised: [30];
- Where a common law duty is imposed, the common law and statute interact and operate concurrently: [32]. The common law imposes a duty in tort which operates alongside the rights, duties and liabilities created by statute: [27].
Western Power exercised its powers in performing its statutory functions of undertaking, operating, managing and maintaining the electricity distribution system by having, on Mrs Campbell’s land, cables, fuses and a meter attached to the pole. Western Power exercised those powers continuously. It was the existence of the live electrical apparatus attached to the pole which posed the relevant risk. Western Power’s exercise of those powers therefore created a relationship between it and all other persons within the vicinity of its electricity distribution system. A critical feature of that relationship was that Western Power exercised those powers in a manner which created or increased the risk of harm to those persons – persons it had the power to protect.
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This article is intended to provide a general summary only and does not purport to be comprehensive. It is not, and not intended to be, legal advice.
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