WESTERN Power contractor Thiess and Parkerville resident Noreen Campbell have been found liable for a bushfire that destroyed 57 homes in the Perth Hills on January 12, 2014.
The class action was brought by law firm Slater and Gordon on behalf of 189 residents affected by the blaze in Parkerville, Stoneville and Mt Helena, which was sparked by a rotten, termite-ridden power pole that fell over.
While the power pole was privately owned and on the property of Granite Road resident Noreen Campbell, EnergySafety found termite deposits near the top of it would have been visible to a Thiess contractor connecting a cable in July 2013.
Slater and Gordon group leader Rory Walsh argued during the trial last year that work carried out by Thiess on the pole six months before its collapse, and the work carried out next to the pole two days before, should have led to it being detected to be in a deplorable state.
In its report, EnergySafety found termite deposits near the top of the pole would have been visible to the Thiess contractor.
Handing down his verdict in the WA Supreme Court this morning, Justice Rene Le Miere cleared Western Power of any liability determining that the state-owned utility discharged its duty of care to Thiess to carry out the relevant work.
“Thiess and Mrs Campbell are each liable to the plaintiffs in negligence and in nuisance,” he said.
“Thiess breached the duty of care it owed to the plaintiffs by failing to adequately train and supervise the line crew and by failing to exercise due care and skill in inspecting the jarrah pole in accordance with its contractual obligations and industry standards.
“Thiess participated in the creation of a nuisance by failing to inspect the jarrah pole properly, as a result of which the pole remained in service when it was unsafe and unserviceable, and constituted a potential nuisance.
“Mrs Campbell breached the duty she owed to the plaintiffs to take reasonable care to inspect and maintain the jarrah pole in a safe and serviceable condition by failing to make any inspection of the pole.
“Mrs Campbell participated in the creation of a nuisance by retaining and continuing to use the jarrah pole to receive electricity, and not replacing it when it became unserviceable.
“Thiess is liable for 70 per cent of the plaintiffs’ damages and Mrs Campbell is liable for 30 per cent of the plaintiffs’ damages.
“The plaintiffs’ claims against Western Power should be dismissed. Western Power did not owe to the plaintiffs a duty to take reasonable care to regularly inspect and
maintain the jarrah pole.
“The imposition of such a duty of care is incompatible with the legislative scheme of the Electricity Act 1945 (WA) in conferring powers, and imposing duties, on Western Power in relation to the maintenance of assets.
“Furthermore, Western Power did not have the requisite control over the source of the risk of harm, which is the risk that the pole might fail in service due to rot, termites or other damage and cause harm to life or property.
“Western Power did owe to the plaintiffs, when undertaking works on the jarrah pole, a duty to take reasonable care to inspect the pole to ascertain whether it was in a safe and fit condition for use in the supply of electricity.
“That duty was not non-delegable and Western Power discharged that duty by taking reasonable steps to engage and instruct Thiess to do the relevant work.
“Thiess carried out the work as an independent contractor and not as Western Power’s agent. Western Power is not liable in nuisance because it did not create the nuisance.
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