Block v Powercor Australia Ltd
[2019] VSC 15
•6 February 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2018 2155
| NICHOLAS GLEN BLOCK & ANOR | Plaintiff |
| v | |
| POWERCOR AUSTRALIA LIMITED (ACN 064 651 109) | Defendant |
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JUDGE: | John Dixon J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 October 2018 | |
DATE OF JUDGMENT: | 6 February 2019 | Revised 7 February 2019, appearances |
CASE MAY BE CITED AS: | Block v Powercor Australia Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VSC 15 | |
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NEGLIGENCE – Duty of care – Bushfire – Fire ignited by contact between tree and power conductor – Responsibility to clear vegetation – Tree outside minimum clearance space and not hazardous – Statutory and common law duties of care alleged – Whether alleged duties known to the law – Interpretation of statutory regime for tree clearance around powerlines – Whether general duty inconsistent with specific statutory duties and powers – Whether such duties have any real prospect of being successfully established – Electrical Safety Act 1998 (Vic) pt 8, pt 10, ss 1, 3, 82, 84, 85, 86, 98, 151, 151A; Electrical Safety (Electric Line Clearance) Regulations 2015 (Vic) regs 6, 7, sch 1.
PRACTICE AND PROCEDURE – Summary judgment – Defendant’s application for summary dismissal – Civil Procedure Act 2010 (Vic) ss 63, 64 – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 23.01.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr T Tobin QC with Ms G Berlic | Maddens Lawyers |
| For the Defendant | Mr J Ruskin QC with Mr D McWilliams | Wotton & Kearney |
HIS HONOUR:
This group proceeding under pt IVA of the Supreme Court Act 1986 is a claim for damages against a power supply company (‘Powercor’) arising out of a bushfire on 17 March 2018. The fire has become known as the ‘Gazette bushfire’, one of four ‘St Patrick’s day fires’. A blue gum tree at the perimeter of a commercial plantation fell on a powerline conductor, causing ignition of vegetation on the ground. The plaintiffs (‘Block’) allege that Powercor’s breach of duty (both statutory and at common law) caused the fire and that the principal breach of duty was failing to remove or prune the tree before the fire danger period in the 2017–2018 summer.
Powercor sought orders that the proceeding be dismissed pursuant to ss 62 and 63 of the Civil Procedure Act 2010 on the ground the claim has no real prospects of success. Alternatively, that paragraphs 9–25, 27(b), 31–32 and 35–44 of the statement of claim be struck out pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 on the grounds they do not disclose a cause of action.
For the reasons that follow, the proceeding will be summarily dismissed.
The pleadings
I will begin by setting out the pleaded case. First, Block alleges statutory duties imposed on Powercor that arise under s 98 of the Electrical Safety Act 1998 (the ‘ES Act’). These statutory duties require Powercor to design, construct, operate and maintain its supply network to minimise as far as practicable:
(a) the hazards and risk to the safety of any person arising from the supply network;
(b) the hazards and risks of damage to the property of any person arising from the supply network; and
(c) the bushfire danger arising from the supply network.
These duties are alleged to be owed to a ‘statutory class’, defined as persons who from time to time, by themselves or their property, approached or came into contact with parts of Powercor’s network; or might be injured or damaged by a discharge of electricity from any part of the said network or by the consequences of any such discharge, including but not limited to fire.
Block asserts that they, and the group members, were at all relevant times persons within that statutory class. The group members are defined as:
(a) all those persons who suffered personal injury (whether physical injury, or psychiatric injury)[1] as a result of the Gazette bushfire (including without limitation, any injury suffered as a result of burns, inhalation of smoke, attempts to escape the Gazette bushfire or other emergency action taken by the person in response to the Gazette bushfire);
[1]Psychiatric injury in this group means nervous shock or another psychiatric or psychological injury, disturbance, disorder or condition which has been diagnosed as such in a diagnosis given to the person by a medical practitioner prior to 1 March 2019.
(b) all those persons who suffered loss or damage to property as a result of the Gazette bushfire (including, without limitation, loss or damage resulting from emergency action taken by any person in response to the Gazette bushfire);
(c) all those persons who at the time of the Gazette bushfire resided in, or had real or personal property in, the Gazette bushfire area or alternatively in the immediate vicinity of the Gazette bushfire area and who suffered economic loss, which loss was not consequent upon injury to that person or loss or damage to their property as a result of the Gazette bushfire; and
(d) the legal personal representatives of the estate of any deceased person who came within paragraphs (a), (b) and/or (c) at the time of the Gazette bushfire.
Secondly, Block alleges a common law duty of care owed by Powercor (the ‘general duty’). The general duty is described as a duty:
(a) to take reasonable care, by its officers and servants; and
(b) to ensure that reasonable care was taken by its agents or contractors,
to ensure that all parts of the powerline were safe and operated safely in the operating conditions that were foreseeable for the powerline.
The text of paragraphs 13–15 of the statement of claim is as follows:
13. At all relevant times Powercor:
(a) had the right, to the exclusion of other private persons:
(i)to construct, repair, modify, inspect, maintain and operate the powerline; or
(ii)give directions as to their installation, modification, repair, inspection and operation;
(b) exercised the said right; and
(c) in the premises, had control over the powerline.
14. At all relevant times:
(a)Powercor used the powerline to transmit electricity at high voltage;
(b)the transmission of high-voltage electricity along the powerline created a risk of unintended discharges of electricity from the powerline;
(c)an unintended discharge of electricity from the powerline was highly dangerous in that it was capable of causing death or serious injury to persons, and damage to or loss of property, by:
(i) electric shock;
(ii) burning by electric current; further or alternatively
(iii)burning by fire ignited as a result of the discharge of electricity;
(d)in the premises (a) to (c) inclusive, the transmission by Powercor of electricity along the powerline was a dangerous activity; and
(e)Powercor knew, or as network operator ought reasonably to have known the matters set out in (a) to (d) inclusive above.
15. At all relevant times it was reasonably foreseeable to Powercor that:
(a)a discharge of electricity from the powerline could cause the emission of electricity, heat or molten metal particles (sparks) from the point of discharge;
(b)a discharge of electricity from the powerline could cause ignition of flammable material in the vicinity of the point of discharge;
Particulars
Flammable material is any material capable of ignition, including without limitation ignition by contact with molten or burning metal.
(c)such fire once ignited might spread over a wide geographic area;
(d)the fire could cause death or injury to persons and loss of or damage to property within the area over which the fire spread, and consequential losses including economic losses;
(e)such fire could cause personal injury, damage to property and consequential losses including economic losses within areas:
(i)affected by the physical consequences of fire, such as smoke or debris; or
(ii)the subject of emergency activity to prevent the spread of fire, including without limitation the clearing of fire breaks (affected areas);
(f) such fire or its consequences could:
(i)disrupt or impair the income-earning activities of persons residing or carrying on business in the fire area or affected areas;
(ii)impede the use or amenity of property located in the fire area or affected areas; or
(iii)reduce the value of property or businesses located in the fire area or affected areas;
and thereby cause economic loss to those persons, or the owners of those properties or businesses;
(g)each of the risks referred to in (b) to (f) inclusive were likely to be higher when the environment around the powerline was dry and hot and windy than when the environment was damp or cool or windless.
The general duty is alleged to be owed to the ‘Gazette Class’, defined in paragraph 16 as ‘members of the public who might be, or who owned or had an interest in real or personal property that might be, within the fire area or the affected area of a fire caused by the discharge of electricity from the powerline’. Block asserts that they, and the group members, were at all material times within the Gazette Class, whose members had no ability to prevent or minimise the risk of the electrical discharge, were vulnerable to the impact of fire, and were dependent on Powercor ensuring the powerline was safe and operated safely in the applicable operating conditions. The operating conditions included the level of electrical current transmitted and the environmental conditions, such as wind, temperature, and the presence of objects capable of coming into contact with powerlines.
The allegations of the content of both the statutory duties and the general duty are combined and described as follows:
20. At all relevant times, the area in the vicinity of the powerline:
(a)was in a hazardous bushfire risk area within the meaning of section 3 of the ES Act;
Particulars
The area in the vicinity of the powerline was not in an urban area and had not been assigned a fire hazard rating of ‘low’ under s 80 of the ES Act.
(b)featured many mature gum trees within a commercial plantation which were of such height, and sufficiently close to the powerline, that if they fell there was a material risk that the tree would fall across the powerline causing a conductor to break and / or electrical arcing to occur between the tree and a conductor on the powerline, or between conductors or between a conductor and the ground.
Particulars
To the east and to the west of the powerline there was a mature plantation of Eucalyptus trees.
Insofar as the plaintiffs are able to estimate, as at 17 March 2018 the heights of the trees within the plantation adjacent to the powerline were at least 30m, many being taller than the horizontal distance between the trunk of the trees and the nearest conductor of the powerline.
Further particulars may be provided (if required) following the delivery of experts' reports.
21. At all material times since no later than 13 December 2009:
(a)Powercor was responsible for keeping the whole or any part of a tree clear of the powerline;
Particulars
The responsibility was imposed by subsection 84(7) [sic] of the ES Act.
(b)Powercor had the power to keep the whole or any part of a tree clear of the powerline.
Particulars
The power was conferred by sections 85 and 86 of the ES Act.
22.At all relevant times, it was reasonably foreseeable to Powercor that a failure to inspect for, identify, assess and/or manage mature trees within a commercial plantation of trees located adjacent to Powercor's supply network could result in a tree falling across its conductors.
23. At all relevant times:
(a)the conductors on the powerline were bare or uninsulated aerial conductors;
(b)there was a material risk that in the event of conductors being displaced in any way by a tree they could arc between themselves or with the tree, tree stem or branch, alternatively fail, fall and come into electrical contact with the ground;
(c)there was a material risk that an arc or electrical contact occurring might cause the discharge of electricity or molten particles of super-heated metal from the section of conductor where arcing occurred;
(d)there was a material risk that an arc or electrical contact occurring between conductors, a conductor and a tree, or a conductor and the ground might cause vegetation in the tree or on the ground to ignite;
(e)the two-phase 22kV distribution line comprising the powerline was fitted with fault current detection and protection devices (protection systems);
Particulars
Further particulars may be provided following the completion of discovery and receipt of expert evidence.
(f)the protection systems regulating the powerline were such that there was a material risk that, in the event of a tree falling across the powerline, the protection systems would or could allow current to continue to be transmitted through the powerline to cause ignition of a fire, especially in dry and windy conditions;
(g)there was material risk that sparks or electrical discharge or heat from arcing or electrical contact could ignite vegetation in the vicinity of the sparks, heat or discharge;
(h)the risk referred to in (g) was higher the longer that the protection systems permitted current to be transmitted through the powerline after a tree came into contact with a conductor or conductors of the powerline;
(i)the risk referred to in (g) was higher when conditions around the powerline were dry and hot and windy than when conditions were moist, cool and calm;
(j)the dry, hot and windy conditions which increased the risk referred to in (g) above were also likely to increase the risks of a tree falling across the powerline.
24.At all material times Powercor knew or, as operator of a supply distribution network, ought reasonably to have known the matters set out in the preceding paragraph.
25.In the premises, the Statutory Duties and the General Duty required Powercor to design and implement a system that was capable of reasonably mitigating the risk of plantation trees falling onto or otherwise coming into contact with an electric line.
In paragraphs 26–30, Block pleads material circumstances about the blue gum plantation. Paragraph 27(b) provides that ‘[a]t all relevant times to 17 March 2018 Powercor required a clearance zone of 20 metres from the conductors on the powerline to the trees in the Blue Gum Plantation (clearance zone)’. The stems (presumably the trunks) of the trees at the edge of the plantation were outside of the clearance zone but many were in excess of 20 metres in height with canopies extending into the clearance zone. The particular tree in issue (the ‘Tree’) is said to have been approximately 30 metres tall with a diameter ‘at breast height’ exceeding 400 millimetres, and standing approximately 21.5 metres from the line of the power poles supporting the conductor such that the western conductor (the closest to the tree) was approximately 20 metres from the centre of the tree trunk.
Block alleges that the trees on the edge of the blue gum plantation adjacent to the powerline including the Tree were an obvious potential hazard to the powerline and that Powercor knew or, as operator of a supply distribution network, ought reasonably to have known these matters. The conditions on the day in the vicinity of the powerline, including the condition of nearby vegetation, the temperature, and the wind speed, were within the range of foreseeable operating conditions.
Block alleges that the Gazette bushfire was caused by Powercor’s breach of the statutory duties, and further or alternatively, breach of the general duty, in three principal respects: failing to maintain a safe distance between the conductors and the adjacent vegetation, failing to have adequate systems for identifying trees at risk of contacting powerlines, and failing to trim or remove vegetation at an unsafe distance from powerlines. But for the breaches of the duty, the Tree would have been removed or pruned by the start of the 2017 - 2018 bushfire danger period and so could not have caused the fire. The Gazette bushfire was a natural and foreseeable consequence of these breaches of duty.
Next, Block pleads a private nuisance claim brought by ‘subgroup members’ being those group members ‘who suffered loss of or damage to property, further or alternatively economic loss, in connection with the Gazette bushfire's interference in their use or enjoyment of interests in land’.
Block pleads:
38. At all relevant times each of:
(a) the risks referred to in paragraphs 14 and 15 above; and
(b)the risk that a fire ignited as a result of the discharge of electricity or sparks from the powerline, would unreasonably interfere with the use or enjoyment of interests in land —
(i) over which the fire passed; alternatively
(ii) within the affected areas,
by the persons entitled to such use or enjoyment, were reasonably foreseeable to Powercor.
39.By transmitting electric current along the powerline, alternatively doing so on 17 March 2018 when the powerline was not safe or operated safely, Powercor created or increased the risks referred to in the preceding paragraph.
40.Powercor by the conduct alleged in the preceding paragraph in fact caused the Gazette bushfire, which fire spread to land in which the subgroup members had interests (subgroup lands).
41.The Gazette bushfire unreasonably interfered with the subgroup members' use and enjoyment of their interests in the subgroup lands.
42.In the premises, the subgroup members suffered nuisance created by Powercor.
Block compendiously alleges causation of their, and the group members’, loss and damage by each of the pleaded causes of action, being breach of the statutory duties, breach of the general duty, and nuisance. Block’s property loss and damage is to fencing, farm infrastructure, pasture, trees and income.
The pleading identifies the common questions of law or fact to be:
(a) whether the statutory duties were owed by Powercor to the plaintiffs and group members, and if so the content of those duties;
(b) whether the general duty was owed by Powercor to the plaintiffs and group members, and if so the content of the duty;
(c) how the Gazette bushfire started;
(d) whether the Gazette bushfire was caused by a breach by Powercor of any of the statutory duties or the general duty;
(e) whether the plaintiffs and subgroup members suffered actionable nuisance created by Powercor; and
(f) what are the principles for identifying and measuring compensable losses suffered by the claimants resulting from the breaches of duty or nuisance alleged.
The Tree and the cause of ignition
The circumstances of the contact between the Tree and conductor causing the fire are uncontested for present purposes. At approximately 9.15pm on 17 March 2018, the Tree fell. Block alleges that the Tree failed approximately two metres above ground level and fell in a south-east direction onto one or both of the conductors on the powerline to the north of a pole (Powercor asset number 700184, referred to as ‘pole 2’). That contact caused the western conductor to fail and fall to the ground where it discharged electricity igniting the immediately surrounding vegetable matter and causing the fire which spread, becoming the Gazette bushfire.
The powerline ran through a blue gum eucalyptus plantation. Block alleges that Powercor maintained a clearance zone of 20 metres from the conductors on the powerline to the trees in the blue gum plantation. Many hundreds of blue gums were planted adjacent to the perimeter of the clearance space, with canopies extending into the clearance zone. The trees within the plantation adjacent to the powerline were at least 30 metres tall. Many were of such height that if they fell there was a material risk of contact or electrical arcing with a conductor. The Tree was planted at the western edge of the clearance zone adjacent to the span to the north of pole 2.
Block says but for the alleged breaches of duty, the Tree would have been removed, or pruned, by no later than the start of the 2017–2018 fire danger period, so that the Tree could not have fallen onto the powerline. A critical step in this reasoning emerged from paragraph 22 of the statement of claim: that it was reasonably foreseeable to Powercor that a failure to inspect for, identify, assess and/or manage mature trees within a commercial plantation of trees located adjacent to Powercor's supply network could result in a tree falling across its conductors. In context this allegation appears to flow from Powercor’s alleged responsibility to keep the whole or any part of a tree clear of the powerline.
Pausing here, some critical features of the factual allegations currently assumed to be capable of proof at trial should be noted. The Tree was not alleged to be a hazard tree in the sense discussed below. Putting that another way, the Tree was healthy with no patent defect. As paragraphs [20](b) and [28] of the statement of claim allege, there were many hundreds of like trees that might, or could, have fallen onto the conductor. All of these trees were clear of the powerline by at least 20 metres, unless they fell. Although the trees were not hazard trees, the many hundreds of them that could fall were characterised by Block as an ‘obvious potential hazard’ to the powerline.
Block makes no clear allegation about why the Tree fell. It was described as having ‘failed at approximately 2m above ground level’, but the characteristics of the failure are not particularised. At its highest, the pleading hints at specific cause with the assertion that the canopy of the blue gum trees was exposed to wind as such canopies were predominately located at the top of the tree but Block does not make any specific allegation of extreme wind, or of directional change, at or about 9.15pm on 17 March 2018. All that is pleaded is that the wind speed and velocity on that day were within the range of conditions that were foreseeable operating conditions for the powerline. The circumstances in which the Tree fell over were not otherwise alleged to be predictable or capable of being anticipated.
Block’s allegations of Powercor’s duties are not directed at the Tree, but rather at the blue gum plantation or at least so much of it as was higher than the distance from the tree trunk to the conductor. Block alleges that had there been no negligence, the Tree would have been removed or pruned along with hundreds of other trees that were located at an ‘unsafe’ distance from the powerline.
The statutory scheme
I note that there are, broadly speaking, three non-exclusive categories of trees that are subject to statutory regulation, each of which is discussed further below:
(a) a tree within the minimum clearance space for a powerline, as defined in the ES Act;
(b) a tree outside the minimum clearance space for a ‘transmission line’ that, if it were to fall, would be likely to enter the minimum clearance space;[2]
(c) a tree that has been determined to be a ‘hazard tree’.[3]
[2]Line Clearance Code cl 7.
[3]Line Clearance Code cl 8.
Before turning to the parties’ submissions, it is desirable to set out the key statutory provisions from the ES Act:
Part 1 – Preliminary
1 Purpose
The purpose of this Act is to make further provision relating to—
(a) the safety of electricity supply and use; and
(b) the reliability and security of electricity supply; and
(c) the efficiency of electrical equipment.
…
3 Definitions
…
Code means the Code of Practice for Electric Line Clearance prescribed for the purpose of Part 8;
…
electric line means—
(a)the whole or any part of a wire, cable or other thing used or to be used for the purpose of transmitting, distributing or supplying electricity; or
(b)any thing enclosing or supporting such a wire, cable or other thing—
but does not include a wire, cable or other thing directly used in converting electrical energy into another form of energy;
…
maintenance, in Part 8, in relation to an electric line or a private electric line, includes the keeping of the whole or any part of a tree clear of the line;
…
practicable, in section 83B or Part 10, means practicable having regard to—
(a) the severity of the hazard or risk in question; and
(b) the state of knowledge about the hazard or risk and any ways of removing or mitigating the hazard or risk; and
(c) the availability and suitability of ways to remove or mitigate the hazard or risk; and
(d) the cost of removing or mitigating the hazard or risk;
…
responsible person, in Part 8, means a person responsible under Subdivision 1 of Division 2 of Part 8 for the maintenance of a private electric line or for the keeping of the whole or any part of a tree clear of an electric line;
…
specified bushfire risk period means the period commencing 1 November and ending 31 March the following year;
…
tree includes vegetation;
…
Part 8 — Bushfire mitigation requirements for certain operators and electric line clearance
…
82 Operation of Part
(1)If a provision of this Part or of a regulation made for the purposes of this Part is, with respect to a particular subject-matter, inconsistent with a provision—
(a)of this or any other Act or law or of a regulation, rule, by-law or Order made under this or any other Act; or
(b) of any agreement—
the provision of this Part or of the regulation (as the case may be) prevails and that other provision is, to the extent of the inconsistency, of no force or effect.
…
84Requirement to keep trees clear of electric lines—distribution companies
A distribution company is responsible for the keeping of the whole or any part of a tree clear of an electric line within its distribution area unless under this Subdivision another person is responsible for—
(a) the maintenance of the line; or
(b) the keeping of the whole or any part of a tree clear of the line.
…
85 Exercise of powers with respect to lines
Energy Safe Victoria or the relevant distribution company or the relevant transmission company may, subject to any code applying in relation to the exercise of powers under this section issued by the Essential Services Commission under the Essential Services Commission Act 2001, exercise the following powers in relation to electric lines—
(a)the power to enter onto land at any reasonable time for the purposes of inspecting an electric line and to remain on the land for so long as is necessary to inspect the line; and
(b)the power, with the agreement of Energy Safe Victoria, to order that any electric line proposed to be constructed or to be substantially reconstructed be placed underground; and
(c) the power, upon production of a certificate in a form approved by Energy Safe Victoria and issued by the relevant distribution company or the relevant transmission company and at any reasonable time, to enter onto and remain on any land, for as long as is necessary for the carrying out of any work which is required to be carried out by Energy Safe Victoria or distribution company or transmission company to fulfil its responsibilities under section 84 or 84D.
86 Failure to maintain lines
(1)Energy Safe Victoria or, with the approval of Energy Safe Victoria, the relevant distribution company, may by notice in writing require a person to perform acts specified in the notice for the purpose of keeping the whole or any part of a tree clear of an electric line in respect of which that person is the responsible person within a time specified in the notice being, subject to subsection (4), not less than 14 days after the date of the notice.
(2) If—
(a)there is an electric line above or below the surface of land in respect of which there is in force a planning scheme; and
(b)the planning scheme requires a permit to be obtained to trim or remove trees on the land—
a person required by Energy Safe Victoria or the relevant distribution company by notice in writing under subsection (1) to perform any act for the purpose of keeping the whole or any part of a tree clear of the line must, before taking any action to comply with the notice, obtain any necessary permit pursuant to the Planning and Environment Act 1987 in respect of the action necessary to comply with the notice unless an officer or employee of Energy Safe Victoria or the relevant distribution company considers the line to be in such a dangerous condition that urgent compliance with the notice is necessary.
…
86A Energy Safe Victoria may give directions for the restriction or prevention of tree growth
(1)If Energy Safe Victoria is satisfied that it is necessary to do so in order to prevent future unsafe electrical situations, Energy Safe Victoria may, in writing, direct a specified person—
(a)to restrict or cease the planting of specified trees or species or classes of tree in the immediate area around an electric line; or
(b)to clear specified trees or species or classes of tree from the immediate area around an electric line; or
(c)to do any other thing necessary to minimise or prevent growth of specified trees or species or classes of tree in the immediate area around an electric line.
(2) A direction under subsection (1) must be reasonable.
(3)In this section, specified person means the owner or occupier of land in the area of an electric line or the relevant distribution company or relevant transmission company that owns or operates the electric line.
(4)A specified person must comply with a direction under subsection (1) that applies to the specified person.
…
Part 10— Electricity safety management
98 General duty of major electricity companies
A major electricity company must design, construct, operate, maintain and decommission its supply network to minimise as far as practicable—
(a)the hazards and risks to the safety of any person arising from the supply network; and
(b)the hazards and risks of damage to the property of any person arising from the supply network; and
(c)the bushfire danger arising from the supply network.
…
Part 13—Regulations
151 Electric line clearance
The Governor in Council may make regulations for or with respect to—
(a)standards of design, construction and maintenance of private electric lines;
(b)the manner in which a distribution company or transmission company may exercise its powers under section 85(b) and (c);
(c)the Code of Practice for Electric Line Clearance setting out—
(i)the duties of responsible persons;
(ii)the standards and practices to be adopted and observed in tree pruning or clearing in the vicinity of electric lines;
(iii)management procedures to minimise danger of electric lines causing fire or electrocution;
(iv)any other matters for or with respect to the maintenance of electric lines;
(d)requiring responsible persons to prepare and submit to Energy Safe Victoria for approval management plans relating to compliance with the Code and requiring compliance with an approved management plan;
(e)the standards and practices to be adopted and observed in relation to—
(i)tree planting, pruning or clearing in the immediate area around electric lines;
(ii)species of tree or classes of tree that may remain or be planted in the immediate area around electric lines;
(iii)species of tree or classes of tree that must be cleared from the immediate area around electric lines;
(iv)the management of trees in the immediate area around electric lines.
151A Bushfire mitigation
The Governor in Council may make regulations for or with respect to—
(a)the prevention of bushfires arising from electric lines or electrical installations;
(b)the protection of electric lines or electrical installations from the effects of bushfires;
(c)the inspection of electric lines or electrical installations for the purpose of the prevention of bushfires arising from such lines or installations;
(d)the training of persons conducting inspections of the kind referred to in paragraph (c);
(e)the auditing of the training and performance of persons conducting inspections of the kind referred to in paragraph (c).
Block alleges that the powerline was in a hazardous bushfire risk area within the meaning of s 3 of the ES Act, as the area was not in an urban area and had not been assigned a fire hazard rating of ‘low’ under s 80 of the ES Act. Further, the powerline was an at-risk electric line but not a private electric line,[4] being a two-phase 22kV distribution line. Powercor was a major electricity company.[5]
[4]ES Act s 83A.
[5]Electricity Safety Act 1998 s 3.
The Electricity Safety (Electric Line Clearance) Regulations 2015 (‘Line Clearance Regulations’) relevantly prescribes schs 1 and 2 as the Code of Practice for Electric Line Clearance (‘Line Clearance Code’ or ‘Code’),[6] and the Code prescribes the standards and practices to be adopted and observed in tree cutting or removal in the vicinity of electric lines and for keeping of the whole or any part of a tree clear of electric lines.[7]
[6]Line Clearance Regulations reg 7.
[7]Line Clearance Regulations reg 1(b)(i).
Regulation 6 defines a tree for which a person has clearance responsibilities under pt 8 of the ES Act as a tree for which that person is responsible to keep the whole or any part of it clear of an electric line.
Clause 2(1) of the Line Clearance Code defines ‘minimum clearance space’:
Except as otherwise provided by this clause, the minimum clearance space for a span of an electric line is the minimum clearance space for the span as determined under Part 3.
Clause 3 requires responsible persons to ensure that, at all times, no part of a tree for which the person has clearance responsibilities is within the minimum clearance space for a span of an electric line, subject to clauses 4, 5 and 6 that are presently inapplicable.
Clause 7 deals with management of trees around the minimum clearance space:
7 Owner or operator of transmission line must manage trees around minimum clearance space
A responsible person who owns or operates a transmission line must—
(a)manage trees below the transmission line to mitigate, as far as practicable, the fire risks associated with the fuel load below the transmission line; and
(b)manage trees adjacent to the transmission line to avoid, as far as practicable, a tree entering the minimum clearance space around that line if the tree falls.
Importantly, this obligation is only imposed with respect to transmission lines and does not extend to a two-phase 22kV distribution line as defined by the statement of claim. It was not in dispute between the parties that a distribution line is not a transmission line.
Clause 8 gives powers with respect to ‘hazard trees’ and defines what constitutes a hazard tree. It provides:
8 Responsible person may cut or remove hazard tree
(1)This clause applies to a responsible person referred to in section 84, 84C or 84D of the Act.
(2)The responsible person may cut or remove a tree for which the person has clearance responsibilities if a suitably qualified arborist has—
(a)assessed the tree having regard to foreseeable local conditions; and
(b)advised the responsible person that the tree, or any part of the tree, is likely to fall onto or otherwise come into contact with an electric line.
(3)For the purposes of this clause it is irrelevant that the tree is not within, and is not likely to grow into, the minimum clearance space for a span of an electric line.
The cutting or removal of certain trees must be minimised. Clause 10 provides:
10 Cutting or removal of specified trees must be minimised
(1)A responsible person cutting, under Division 1, a tree of a kind specified in subclause (3) must, as far as is practicable, not cut the tree more than is necessary to either—
(a) ensure compliance with Division 1; or
(b) make an unsafe situation safe.
(2)A responsible person must not remove, under Division 1, a tree of a kind specified in subclause (3) unless—
(a) it is necessary to remove the tree to either—
(i) ensure compliance with Division 1; or
(ii) make an unsafe situation safe; or
(b) a suitably qualified arborist has—
(i) inspected the tree; and
(ii)advised the responsible person that cutting the tree in accordance with subclause (1) would make the tree unhealthy or unviable.
(3)The following kinds of tree are specified for the purposes of subclauses (1) and (2)—
(a) native trees;
(b)trees listed in a planning scheme to be of ecological, historical or aesthetic significance;
(c) trees of cultural or environmental significance.
Part 3 of the Line Clearance Code is concerned with minimum clearance spaces. Clause 24(4) details the applicable distance for the middle two-thirds of an electric line.[8] The applicable minimum clearance space was the subject of uncontested evidence, discussed below.
[8]See also Line Clearance Code sch 2 graph 1.
Although not part of the statutory regime, it is convenient to here refer to the CitiPower & Powercor Vegetation Reference Guide 2017 (‘Guide’),[9] which is a resource for contractors and personnel executing field works within the Powercor and CitiPower electricity networks.
[9]Vegetation Contract Management Officer, CitiPower & Powercor Vegetation Reference Guide 2017 (CityPower Pty & Powercor Australia Ltd, 4 January 2016).
The Guide defines a hazard tree as a ‘tree, or part of a tree, that having regard to foreseeable local conditions, is likely to fall onto or otherwise fail and come into contact with an electric line’.[10] The Guide instructs that in practice during inspection, trees with stems or branches that have obvious and visible structural defects, as viewed from the point of clearance inspection, that can fail and impact an electric line, are hazard trees. Section 7.3 of the Guide requires that an inspector or responsible person must identify trees or vegetation deemed hazardous, being a tree or vegetation ‘which is likely to fall onto or come into contact with any power line or power infrastructure’.
[10]Ibid 7; cf ES Act s 86B.
Where vegetation is identified as likely to enter the minimum clearance space in the next two years, the inspector or responsible person is required by the Guide to collect additional information, including identifying those trees that are taller than the conductor.
Section 12.5 of the Guide addresses commercial plantations. It reads:
The Code of Practice for Timber Production 2014 requires that there be a 20 metre wide easement between a PAL powerline and the edge of the plantation. Record non-compliance with the 20 metre separation on the mobility device. Record plantation owner details if applicable.
In situations where plantation harvesting has left an exposed edge row vulnerable to blow-down, the edge row trees should be recorded on the mobility device as hazard trees.
[an example photograph appears]
Retained edge-row trees at the edge of a Blue Gum timber plantation—these can be seen leaning towards the power line and are vulnerable to blow-down in strong winds. Note the fallen timber lying on the ground in the easement. Retained edge-row trees such as these should be recorded by vegetation inspectors.
Section 16 of the Guide deals with inspecting for hazard trees. Appendix 1 to the Guide is the Vegetation Management Policy, which was not included in the materials provided on this application.
Minimum Clearance Space
I referred above to the minimum clearance space required by pt 3 of the Line Clearance Code. Powercor, in its defence, contended that the minimum clearance space required by the Code is 3.9 metres. An affidavit sworn by the defendant’s solicitor explained how this clearance space was calculated. Clause 28 of the Code sets out the criteria for a calculation of the minimum clearance space for an uninsulated low voltage or a high voltage electric line (other than a 66,000 volt electric line) in a hazardous bushfire risk area. That minimum clearance space is the space extending away from the line in all directions perpendicular to its axis for the ‘applicable distance’ and an additional distance that allows for cable sag and sway, including the space above the space just defined.
The applicable distance for the first and last-sixth of the span is 1,500 millimetres and the applicable distance for the middle two-thirds of the span, being a span distance greater than 45 metres and less than 500 metres, is calculated in accordance with a detailed formula set out in the Code. The relevant span length was 345 metres. Adding a safety margin of 500 millimetres and calculating the sag and sway in accordance with Appendix R of AS/NZS 7000:2016, Powercor calculated the relevant minimum clearance space at 3.9 metres.
This calculation was not contested on the application, although the calculation is not admitted. Neither was it suggested that the minimum clearance space mandated by the Code was in excess of the 20-metre clearance zone applicable to commercial plantations. In other words, there will be no contest at trial, as the pleadings presently stand, that the actual clearance space maintained by Powercor exceeded the minimum clearance space defined by the Electric Line Clearance Regulations. Block’s contention is that the relevant trees stand outside the minimum clearance space and the duty of care that they allege is in respect of trees in this category.
Block pleads that Powercor ‘required’ the clearance zone of 20 metres, particularising statements made by Steven Neave, Powercor General Manager, in The Standard newspaper, where Mr Neave is reported as saying that in the relevant area there was a clearance zone of 20 meters required from the trees to the powerlines. Block also refers to cl 34.07-1 of the Southern Grampians Planning Scheme (Victorian Planning Provisions), which provides:
(a)a planning permit is not required for timber production within a farming zone;
(b)the plantation must not be within 20 metres of a powerline whether on private or public land, except with the consent of the relevant electricity supply or distribution authority.
Powercor pleads that it did not impose a clearance zone of 20 metres, nor were they required by the Southern Grampians Planning Scheme to enforce one. Likewise, the Code of Practice for Timber Production 2014, referred to in the Guide, did not impose such a duty on Powercor. The obligations under those documents — to have a 20‑metre easement, or zone, between plantations and powerlines — were imposed upon the relevant land owners and not Powercor. The Guide created only an ‘inspection and identification’ process for trees within the 20-metre clearance zone, and did not go so far as to require Powercor employees to clear trees within the clearance zone. A duty for Powercor to remove trees within a 20-metre clearance zone (but outside the minimum clearance space) would be inconsistent with the statutory regime.
Block does not allege that Powercor undertook the clearing of trees that were within 20 metres of the line but beyond the minimum clearance space, nor that Powercor had an obligation to do so. The Guide evidences that Powercor’s approach was only to record the details of trees that were non-compliant with the 20-metre clearance zone in commercial plantations.
Defendant’s submissions
Powercor submitted its powers and obligations with respect to tree clearance are contained in pt 8 of the ES Act and the Line Clearance Code, and not beyond. To the extent there is a duty imposed on Powercor with respect to tree clearance, its content and extent is confined by pt 8 and the Code, and is not founded in s 98 of the ES Act.
Section 84 imposes a responsibility to keep trees clear of powerlines, and ss 89 and 151 provide for the provision of regulations for a code of practice for those line clearance duties. The pleaded case cannot make out any breach of the obligations with respect to tree clearance in pt 8 or the Code, as the tree was not within the minimum clearance space, the tree was not a hazard tree, and the relevant line was a distribution, not transmission, line. Powercor did not have the power, pursuant to s 84 of the ES Act, to keep the Tree clear of the powerline. The alleged duties are incompatible with the statutory scheme and would distort the performance of statutory function.
The limits on Powercor’s powers and obligations clearly emerge from the legislative background and purpose, including regulatory statements. Critically, attention to the language of pt 8, ‘Bushfire mitigation requirements for certain operators and electric line clearance’, in particular ss 82, 84 and 89 reveal such limits. Part 8 is concerned with tree clearance. Powercor emphasised that s 98, on which Block would found the general duty to be applied to tree clearance, is contained in pt 10 of the Act. There is a distinction in purpose between the Parts, and the subject matter of s 98 is power company assets, not tree clearance. Powercor contended this distinction is supported by analysis of the origin and language of s 98; particularly with emphasis on the definition of ‘maintenance’ in the ES Act which, by referring to pt 8 but not pt 10, reinforces that the maintenance of trees is governed by pt 8. This distinction is further supported by s 82 which gives primacy to the operation of pt 8.
Powercor relied in particular on the following canons of statutory construction: harmony; inclusion unias; generalia specialibus non derogant; ejusdem generis and noscitur a sociis.
The common law duty must conform to the regulatory scheme. This requires consideration of a number of common law principles, including that:
(a) mere foreseeability is not sufficient to found a common law duty of care;
(b) power and foreseeability do not necessarily produce a common law duty;
(c) a common law duty must not be inconsistent with the applicable legislative scheme. In this case the inconsistency arises between the minimum clearance space requirement and the asserted general duty;
(d) no duty of care arises if the alleged duty distorts the effect of statutory functions;
(e) a duty of care requires control over the risk in the case; and
(f) a novel duty of care, such as is here alleged, is treated with caution.
Powercor drew an analogy between its functions and the operations of a branch of government, in that Powercor is providing a utility service subject to a government-issued licence, and is regulated stringently. The statutory scheme is therefore relevant, and any common law duty must be compatible with the legislative powers and duties imposed.
Powercor also submitted the statement of claim gives rise to indeterminacy of class, which mitigated against the existence of the duty. Further, vulnerability, as alleged in paragraph 16 of the statement of claim, does not determine the existence of either duty alleged.
Finally, the plea of nuisance cannot advance Block’s case. Powercor submitted that because of the statutory control and circumscription of its powers in respect of vegetation clearing —
(a) it did not bear the required degree of responsibility for the Gazette bushfire, because it had complied with its obligations pursuant to the statutory regime;[11]
[11]Citing Sedleigh-Denfield v O'Callaghan [1940] AC 880, 897.
(b) it did not create the alleged nuisance nor ‘a state of things’[12] that resulted in the alleged nuisance;
(c) Block’s claim that Powercor ‘increased the risks’ was insufficient at law for a conclusion of causation;[13] and
(d) the nuisance claim seeks to impose obligations on Powercor that are incoherent and inconsistent with its obligations as regulated and controlled by the statutory regime.
[12]Ibid 895–6.
[13]Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145, 168–72 [97]–[104]; CSR Ltd v Amaca Pty Ltd [2016] VSCA 320 [151].
Plaintiffs’ submissions
The statutory duty
Block argued that Powercor owed an express duty under s 98 of the ES Act. This section generally governs Powercor’s power, as a major electricity company, to distribute electricity and operate a supply network. The duty requires Powercor to ‘design, construct, operate, maintain and decommission its supply network’ in a way to minimise risk of harm arising from the supply network as far as is practicable. Specifically, the risk to govern against is the risk of the escape of electricity.
The duty is mandatory and, on the face of it, not subject to any limitation, except for considerations relating to the definition of ‘practicable’. The background to the introduction of this section does not support the contention that it is of limited scope.
Section 98 confers a private right of action on individuals to sue for non-compliance, which is evident from its specificity as to the persons subject to the obligation, the class to be protected by the duty and the measures required to be taken to comply with the duty. Additionally, Block referred to the potential severity of the consequences of non‑compliance, the express use of the word ‘duty’ and the absence of any express contrary intention.
The purpose of s 84 is to assign responsibility to keep trees clear of electric lines. Section 85 of the ES Act confers the power to enter onto properties and carry out works including a broad power to clear lines of trees. Section 86 empowers Powercor to enter property and carry out works where there has not been compliance with notifications compelling persons to carry out works; I pause to note that s 86 would not be engaged in the pleaded circumstances.
In addition to the powers under the ES Act, a power company is conferred powers to carry out works and enter properties under provisions in the Electricity Industry Act 2000, including under ss 86(1)(b), 93(1)(b) and 93(1)(e). Block noted these provisions but did not develop any specific submission regarding them.
Block contended that the general statutory duty under s 98 is not confined by, or inconsistent with, the duties under s 84 or the Line Clearance Regulations. Nor do the requirements under the Regulations ‘cover the field’. For s 98 to be read down as a general duty save for duties relating to ‘trees’ or ‘line clearing’, or if pt 8 was to be read as wholly exhaustive of the duty relating to ‘trees’ or ‘line clearing’, it would need to be expressly stated.
Line clearing is but one of the ways that Powercor may comply with its broader duty under s 98. There are other options, for example, aerial bundled cables and underground or rerouted lines. In addition to the obligations and powers under the legislation to cut trees within clearance spaces, trees likely to grow into clearance spaces of transmission lines, and hazard trees, a separate power exists under pt 8 to remove trees that constitute a significant risk of impacting the lines in the normal environmental circumstances but do not fall into one of the other categories under the Code. This includes trees taller than the distance to the powerline that are capable of striking the line. This power was not specifically identified.
Block submitted that the definition of ‘maintenance’ in the ES Act did not distinguish between the purpose of pt 8, being maintenance with respect to trees, and pt 10, being maintenance of electricity assets. Section 84 deals with maintenance of the line, whereas s 98 deals with maintenance of the supply network. I pause to reject this submission. ‘Maintenance’ or ‘maintain’ is not specifically defined in the ES Act except where it is used in pt 8. Further, the statutory definition is inclusive, not exhaustive. It perhaps expands, or at least makes clear, the ordinary and natural meaning of the concept of maintenance when tree clearing is involved.
The plain and natural meaning of maintenance or maintain applies consistently throughout the ES Act, save that the Act makes explicit for the purposes of pt 8 that in relation to an electric line, maintenance includes keeping the whole or any part of a tree clear of the line. It does not follow that the ordinary natural meaning of maintenance of an electricity supply network, unenhanced by the statutory definition, could not include keeping the whole or any part of a tree clear of an electric line.
Block contended that s 98, which uses the word ‘maintain’, more generally dealt with maintenance of a supply network. Block contended that the ejusdem generis rule did not apply as it is not clear that ‘maintain’ is used in the same sense.
Section 151(b) of the ES Act provides that the Governor in Council may make regulations with respect to ‘the manner in which a distribution company or transmission company may exercise its powers under section 85(b) and (c)’. Section 151(c) provides that regulations may also be made for a ‘Code of Practice for Electric Line Clearance’, setting out the duties of responsible persons, the standards and practices to be adopted and observed in tree pruning or clearing in the vicinity of electric lines, management procedures to minimise danger of electric lines causing fire or electrocution and any other matter for or with respect to the maintenance of electric lines.
Block contended that the regulations made under this power did not exhaustively set out the ways in which Powercor may exercise its s 85 powers. Nothing in the purpose or background of s 151(c)(i) suggests it is intended to exhaustively set out the duties, as does the use of the word ‘may’ in the section. Pausing there, the word ‘may’ is used in the chapeau and relates to the duties of the Governor in Council. Its presence does not support Block’s contention.
Part 2 div 1 of the Line Clearance Code, which establishes mandatory minimum tree clearance requirements, is also non-exhaustive as is apparent from the legislative framework, purpose and history. Further, the requirement under the Code is that a tree be kept clear of the ‘minimum clearance space’. The word ‘minimum’ indicates that greater clearing may be required to comply with the relevant duties under ss 84 and 98.
Clause 10 of the Code, which prohibits the cutting of certain trees any ‘more than is necessary’ to comply with div 1 or to remove an unsafe situation, does not affect the relevant powers of Powercor as it applies only to certain specified trees and deals with the manner of cutting trees required to be cut under div 1.
The legislative scheme by way of ss 84 and 85, the Line Clearance Regulations and the Code is a minimum, not exhaustive, standard of duty. Sections 85 and 98 therefore operate harmoniously.
The general duty
Block argued that Powercor owed a general duty at common law to exercise reasonable care to ensure there was no escape of electricity causing bushfire. An examination of the salient features of the relationship, including the features raised by Powercor, establish the duty. The general duty was not abrogated by the effect of s 84 of the ES Act and corresponding regulations. This is because Powercor was still subject to the more general s 98 duty, and the pleaded general law duty is coherent with the statutory duties.
The reasonable foreseeability of harm resulting from Powercor’s conduct is to be considered ‘quite generally’ at the stage of inquiry as to duty. The risk of harm need only be not far-fetched or fanciful to be reasonably foreseeable. It was reasonably foreseeable to an electricity distributor in Victoria in Powercor’s position that a failure to take reasonable care to ensure its network and powerline were safe and operated safely could cause harm to members of the public, including by the ignition of a bushfire.
Pausing, this broad articulation of foreseeability of harm was not helpful. The relevant risk of harm was a bushfire resulting from a want of care in maintenance of the network/powerline to avoid damage caused by interaction with trees. Block argued such harm was reasonably foreseeable due to the history of bushfires arising from electricity distribution in Victoria. The severity of the nature of the harm that could arise from bushfires supports the imposition of a duty.
Block submitted that Powercor possessed the requisite level of control over the risk posed by the Tree, the relevant question being the level of control over the risk rather than control of the particular tree. The control was provided for by exercise of power under s 85 of the ES Act, as well as other provisions in related legislation. This contention requires further analysis.
Block submitted that the s 98 duty reflected, or was higher than, that imposed at common law and the statutory duty was not inconsistent with the general law duty. The more specific statutory duties under the ES Act deal only with certain obligations relating to bushfire mitigation and vegetation management. Specific provisions deal with the obligations of Powercor to submit and comply with bushfire mitigation plans, electricity safety management schemes, and vegetation management plans. The obligations in the Line Clearance Code are discrete obligations relating to minimum clearance spaces and hazard trees.
Block referred to the Vegetation Reference Guide, given to Powercor’s scopers and other workers, with differing requirements to those under the legislative scheme. Block argued such documents, and scoping activities, were relevant to Powercor’s general duty. Powercor’s vegetation management plans required it to maintain the clearance spaces pursuant to the Code and made express provision for the inspection of the space outside the clearance space for the purpose of identifying hazard trees.
Block submitted Powercor had not identified with sufficient precision any inconsistency between a general duty to ensure all parts of its network including powerlines were safe and operated safely in all foreseeable conditions, and any obligations under the ES Act. Powercor had the requisite powers under s 85 of the ES Act, as well as its additional powers under s 86 of the ES Act and under the Electricity Industry Act 2000.
The legislature’s intent behind the ES Act was to minimise the risks arising from the operation of electric lines and distribution lines, and the risk of bushfires; interpreting the ES Act and Code as limiting Powercor’s obligations would be contrary to this intent. This is evidenced in sections of the ‘Report of the Board of Inquiry into the Occurrence of Bush and Grass Fires in Victoria’ (‘the Barber report’),[14] which was the origin of the statutory framework.
[14]Victoria, Report of the Board of Inquiry into the Occurrence of Bush and Grass Fires in Victoria, Parl Paper No 91 (1976-78).
No aspect of the framework or its history gives rise to an inference that the legislature intended the common law duties to be excluded. The second reading speech to the precursor to s 84, s 60 of the State Electricity Commission (Clearance of Lines) Act 1983, noted the common law position regarding liability for damage arising from electric lines was reserved. The regulatory impact statements also made specific reference to the potential for common law duties to be owed in the statutory framework context.
Block contended that Powercor’s assertion that the class is indeterminate is incorrect. The class of potential victims, and the scope of a defendant’s liability, is capable of being reasonably calculated. They are limited by the size of the area affected by the fire. The correct focus of the enquiry is the class of potential loss sufferers, and not the ways in which the risk can potentiate. The burden placed on a defendant by the general duty, and the size of the class, are not relevant considerations and limiting the burden is not an objective of the statutory framework. A pure economic loss claim for damages would be established separately and not by way of the common questions.
The vulnerability of persons dependent on the proper exercise of the relevant power is a salient feature to be considered in the circumstances. In contending that it owed no duty, Powercor proposed an inapt analogy between its operations distributing electricity, subject to a licence issued by a government authority, and the operations of a government body. Powercor’s obligation to supply electricity pursuant to its licence is not absolute. The public policy considerations limiting liability, considered in Graham Barclay Oysters Pty Ltd v Ryan (‘Graham Barclay Oysters’),[15] are not applicable. Further, a government authority may be subject to a duty of care where the risk and danger of the relevant activity are high.[16]
[15](2002) 211 CLR 540 (‘Graham Barclay Oysters’).
[16]Thompson v Bankstown Corporation (1953) 87 CLR 619.
Block submitted the duty they contended for was not novel. The concept of liability for injury or damage caused by a fire arising from a defendant’s acts or omissions is not novel in the law and has been subject to frequent litigation. The cases cited by Powercor may be distinguished. Whether that be so, Block did not cite judgments from such frequent litigation to make good that contention.
Factual findings may affect the nature and extent of the duty, and accordingly the questions should be resolved at trial. Examination of the electrical safety management scheme, including that there be a pre-summer bushfire mitigation plan and bushfire inspections, may be informative. Documents relating to these requirements have not yet been produced.
In relation to the nuisance claim, Powercor’s application should fail for the reason that Powercor’s powers were not controlled and circumscribed by the statutory framework, and the issues are linked inextricably with findings of fact and are not appropriately determined summarily.
Finally, the plaintiffs argued that I should exercise my discretion conferred by s 64 of the Civil Procedure Act 2010 to refuse the relief sought in this strike-out application. This is because the grant of relief is not in the interests of justice and a full hearing on the merits as to the scope and extent of the power and functions of the defendant is required to determine the existence of the relevant duties.
Applicable principles
Summary judgment
The parties agreed on the applicable principles for determining the application and they may be briefly stated. The power to summarily dismiss a civil proceeding is found in s 63 of the Civil Procedure Act2010 and O 22 of the Supreme Court (General Civil Procedure) Rules 2015 and may be exercised if the court is satisfied that a claim in the proceeding ‘has no real prospect of success’.
In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd, Warren CJ and Nettle JA determined as follows:
Upon the present state of authority:
(a)the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
(b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
(c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[17]
[17]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, 40 [35]; Bodycorp Repairers Pty Ltd v Australian Associated Motor Insurers Ltd [2018] VSCA 174 [5].
In the event that a claim has no real prospects of success, a court is not obliged to dismiss it and may nevertheless order that the matter proceed to trial if it is satisfied that it is not in the interests of justice to dispose of the matter summarily, or the dispute is of such a nature that only a full hearing on the merits is appropriate.[18]
[18]Civil Procedure Act 2010 s 64.
In Trkulja v Google LLC, the High Court observed, in a proceeding concerned with the test for determination of an application to set aside service of a proceeding out of Australia:
In Victoria, the test for summary judgment is prescribed by s 62 of the Civil Procedure Act: whether the plaintiff's claim has ‘no real prospect of success’. Consistently with Spencer, the view taken in Victoria is that the power to dismiss an action summarily is not lightly to be exercised but that, like the test applicable to s 31A of the Federal Court of Australia Act, the ‘no real prospect of success’ test is to some degree more liberal than Dey and General Steel. It permits of the possibility of cases in which, although the plaintiff's case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding.[19]
[19]Trkulja v Google LLC (2018) 356 ALR 178, 183 [23] (citations omitted).
Powercor accepted that it carried a high onus of persuasion that Block should be denied a trial on evidence because the three pleaded causes of action have no real prospect of success.
Duty of care
I next turn to briefly state the principles that apply in assessing the merit of the application. It is a question of law whether, on the assumed facts of this case, duties of care existed.[20] That question necessarily involves assessing the duties pleaded and relied on by Block and characterising the nature of the plaintiffs’ loss.
[20]Jaensch v Coffey (1984) 155 CLR 549, 581–2 (Deane J); Wicks v State Rail Authority (NSW) (2010) 241 CLR 60, 73 [33].
Block does not claim to have suffered pure economic loss although the group is defined to include as members all those persons who at the time of the Gazette bushfire resided in, or had real or personal property in, the Gazette bushfire area, or alternatively in the immediate vicinity of the Gazette bushfire area, and who suffered economic loss, which loss was not consequent upon injury to that person or loss or damage to their property as a result of the Gazette bushfire.
In Woolcock Street Investments Pty Ltd v CDG Pty Ltd, Gleeson CJ, Gummow, Hayne and Heydon JJ accepted that the general rule of the common law is that damages for pure economic loss, that is not consequential upon damage to person or property, are not recoverable if all that is shown is that the defendant’s negligence was a cause of the loss and the loss was reasonably foreseeable.[21] This is so except in cases of negligent misstatement where the plaintiff proved an assumption of responsibility by the defendant and known reliance on the defendant by the plaintiff.
[21](2004) 216 CLR 515, 530 [21].
There is not a common question that Powercor owed a duty to avoid inflicting pure economic loss. On this application it is unnecessary to determine whether the alleged duties of care extended to a duty to avoid inflicting pure economic loss.
For present purposes, should Powercor’s application succeed, any such common question would also be answered in Powercor’s favour, but I will proceed on the basis that Block claims to have suffered property damage and economic loss consequent on such damage.
Block’s first contention is that Powercor owed a statutory duty of care arising under s 98 of the ES Act to maintain its supply network. This duty was owed to persons who might be injured or damaged by the consequences of a discharge of electricity from any part of the network, specifically by a bushfire. That class of persons included Block.
Block’s second contention is that Powercor owed such persons a common law duty to take reasonable care to ensure that all parts of the powerline were safe and operated safely in the foreseeable operating conditions.
Each duty required that Powercor design and implement a system that was capable of reasonably mitigating the risk of plantation trees falling onto or otherwise coming into contact with an electric line forming part of its network.
First, whether Powercor owed a statutory duty of care to Block as alleged in the circumstances pleaded is a question of statutory construction. Powercor submitted that there were no relevant questions of fact in dispute that would warrant a trial and Block, when invited in oral argument to contradict that assertion, did not do so. As I have noted, some possible determinative factual disputes were referred to in Block’s written submissions.
As the Court of Appeal recently observed in Greater Shepparton City Council v Clarke, the starting point is the text of the particular statutory provisions, particularly the language used by Parliament to express its intention,[22] but such statutory provisions are not to be construed in isolation.[23] The legislative intention expressed in particular provisions is to be interpreted in context, understood by reference to its function in the statutory scheme of which it is part.[24]
[22](2017) 223 LGERA 221, 238 [63,] citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, 46-7 [47]; Thiess v Collector of Customs (2014) 250 CLR 664, 671 [22]; DPP v Walters (a pseudonym) (2015) 49 VR 356, 358 [2].
[23]Greater Shepparton City Council v Clarke (2017) 223 LGERA 221, 238 [63].
[24]Ibid, citing Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39].
The Court noted:
The statutory context of a provision includes the legislative purpose intended to be served by it, and by the legislation of which it forms a part. Section 35(a) of the Interpretation of Legislation Act 1984 provides that a construction that would promote the purpose or object underlying the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to a construction that would not promote that particular purpose or object. In that way, the court is directed, specifically, to identify, and give effect to, the intended statutory purpose, objectively ascertained. However, such an approach does not provide a warrant to ignore the plain language of the statutory provision, or to redraft it so that it conforms with the presumed statutory intention.[25]
[25][2017] VSCA 107 [64], citing Mills v Meeking (1990) 169 CLR 214, 235 (Dawson J); Alinta Asset Management Pty Ltd v Essential Services Commission (2008) 22 VR 275, 293 [81]–[83] (Dodds-Streeton JA); R v L (1994) 49 FCR 534, 538.
The Court of Appeal noted that these principles have been stated by members of the High Court on a number of occasions and counsel took me to these cases in submissions. In Project Blue Sky Inc v Australian Broadcasting Authority (‘Project Blue Sky’), the majority stated:
the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[26]
[26](1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ) (citations omitted) (‘Project Blue Sky’).
In Federal Commissioner of Taxation v Consolidated Media Holdings Ltd, the Court said:
‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text’. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.[27]
[27](2012) 250 CLR 503, 519 [39] (citations omitted); see also Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 304 (Gibbs CJ), 320–1 (Mason and Wilson JJ).
Secondly, whether Powercor owed a common law duty of care to Block as alleged in the circumstances pleaded (the general duty) is a novel question of law to be assessed by reference to the following matters.
In Sullivan v Moody (‘Sullivan’),[28] the Court eschewed any attempt at formulating a general test for determining the existence or non-existence of a duty of care for the purposes of the law of negligence, an approach accepted by the court in subsequent cases.[29] The Court said:
Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle.[30]
[28](2001) 207 CLR 562 (‘Sullivan’).
[29]Brookfield Multiplex Ltd v Owners Corporation Strata Plan No 61288 (2014) 254 CLR 185, 199–202 [19]–[25].
[30](2001) 207 CLR 562, 579–80 [50] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ) (citations omitted), see also Hunter and New England Local Health District v McKenna (2014) 253 CLR 270, 279 [18].
When determining whether a duty of care is owed in novel circumstances, the court must evaluate factors that are now commonly referred to as salient features. This approach clearly emerged in the judgment of McHugh J in Crimmins v Stevedoring Industry Finance Committee (‘Crimmins’),[31] and has been applied and explained in cases such as Sullivan, Graham Barclay Oysters,[32] and Tame v New South Wales.[33] As the existence of a novel duty of care is here alleged, the parties were in broad agreement that this approach was proper.
[31](1999) 200 CLR 1 (‘Crimmins’).
[32](2002) 211 CLR 540.
[33](2002) 211 CLR 317.
For present purposes, it is sufficient to refer to the valuable analysis of the New South Wales Court of Appeal in Caltex Refineries (Qld) Pty Ltd v Stavar.[34] Allsop P ( Simpson J agreeing) extracted from the authorities a non-exhaustive list of considerations of the kind relevant to the evaluative task of imputation of a novel duty and the identification of its scope and content, an analysis that has been approved and adopted in subsequent decisions. The President stated:
[34](2009) 75 NSWLR 649, 676 [102]–[104].
The High Court has rejected its previously enunciated general determinant of proximity, the two stage approach in Anns v Merton London Borough Council [1978] AC 728 based on reasonably foreseeability, the expanded three stage approach in Caparo Industries Plc v Dickman [1990] 2 AC 605 and any reformulation of the latter two, such as in Canada in Cooper v Hobart…
This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the ‘salient features’ or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.
These salient features include:
(a) the foreseeability of harm;
(b) the nature of the harm alleged;
(c) the degree and nature of control able to be exercised by the defendant to avoid harm;
(d) the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
(e) the degree of reliance by the plaintiff upon the defendant;
(f) any assumption of responsibility by the defendant;
(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;
(i) the nature of the activity undertaken by the defendant;
(j) the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct or the activity or substance controlled by the defendant;
(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;
(l) any potential indeterminacy of liability;
(m)the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
(n)the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one’s own interests;
(o)the existence of conflicting duties arising from other principles of law or statute;
(p)consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.
There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.[35]
[35]Ibid 675–6 [101]–[104].
As Hayne J observed in Leichhardt Municipal Council v Montgomery,[36] the statute is the unavoidable starting point for the Court’s inquiry. In the present case, legislative intention is exposed by careful analysis of the legislative text, and its context, particularly by reference to purpose and history. Although a number of salient features can contribute to the analysis of the duty here pleaded, it is clear that inconsistency between statute and the pleaded duty of care is fatal. A lack of coherence falling short of a direct clash between the duty and the statute is sufficient reason to reject the pleaded duty.
[36](2002) 230 CLR 22, 68 [137], see also Brodie v Singleton Shire Council (2001) 206 CLR 512, 527 [12].
My reasoning on statutory inconsistency is determinative of the application, but in deference to counsel’s submission which focussed on a number of salient features including foreseeability, statutory power, control, vulnerability, notions of proximity and indeterminacy, and the nature and degree of hazard created by Powercor’s activities, I will set out my consideration of those matters following my analysis of the legislative framework.
Legislative history
The history relevantly commences with the Barber report.[37] The purposes of that inquiry included examining:
(a) the adequacy and effectiveness of measures taken by government, private agencies, and individuals to guard against the outbreak of bush and grass fires in rural Victoria; and
(b) whether government, private agencies, and individuals need to consider taking different or additional steps to assist in the prevention of bush and grass fires.[38]
No duty of care will arise if the alleged duty would distort the effect of statutory functions. A clear example of such an inconsistency or distortion arising is Sullivan:
The statutory scheme that formed the background to the activities of the present respondents was, relevantly, a scheme for the protection of children. It required the respondents to treat the interests of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered, and were under threat of, serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm. The duty for which the appellants contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the respondents, or with their statutory obligation to treat the interests of the children as paramount. As to the former, the functions of examination, and reporting, require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences for people in the position of the appellants or legal liability to such persons. As to the latter, the interests of the children, and those suspected of causing their harm, are diverse, and irreconcilable. That they are irreconcilable is evident when regard is had to the case in which examination of a child alleged to be a victim of abuse does not allow the examiner to form a definite opinion about whether the child has been abused, only a suspicion that it may have happened. The interests of the child, in such a case, would favour reporting that the suspicion of abuse has not been dispelled; the interests of a person suspected of the abuse would be to the opposite effect.[73]
[73](2001) 207 CLR 562, 582 [62].
The High Court observed:
More fundamentally, however, these cases present a question about coherence of the law. Considering whether the persons who reported their suspicions about each appellant owed that appellant a duty of care must begin from the recognition that those who made the report had other responsibilities. A duty of the kind alleged should not be found if that duty would not be compatible with other duties which the respondents owed.[74]
[74]Ibid 581 [55].
However, this proposition is not absolute:
The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.[75]
[75]Ibid 582 [60].
I have explained my reasons for concluding that the general duty of care at common law pleaded by Block would distort the statutory scheme. This is a further reason to find the duty, in the terms alleged, is not owed to Block. What the High Court said in Sullivan is clear authority for the conclusion I have reached. I will briefly refer to a number of other cases cited to me by the parties.
Hunter and New England Local Health District v McKenna (‘McKenna’) also concerned an alleged common law duty said to be inconsistent with a statutory regime.[76] In that case, a man was admitted to hospital in New South Wales and detained overnight under the Mental Health Act. The next day he was discharged, following a review of his records and discussions with the patient, his family, and a friend. The patient then began to travel back to Victoria with the friend, and on that trip killed his friend. The deceased’s family alleged the hospital and the doctor who discharged the patient owed a duty of care to the patient’s friend and were negligent in placing the patient into his friend’s care.
[76](2014) 253 CLR 270 (French CJ, Hayne, Bell, Gageler and Keane JJ) (‘McKenna’).
The High Court unanimously found the common law duty alleged was inconsistent with the provisions of the Mental Health Act. The Act identified those matters to which doctors and hospitals were required to have regard in exercising powers, duties and responsibilities under the Act with respect to admission and detention of mentally ill people.
The Court began by considering the legislative framework created by the Act, including the powers of detention of patients. Of particular importance was s 20 of the Act that ‘prohibited detention, or the continuation of detention, unless the medical superintendent of the hospital formed the opinion that no other less restrictive care was appropriate and reasonably available’.[77] The Court concluded
These features of the Act presented a medical superintendent of a hospital deciding whether a person should be, or should continue to be, involuntarily admitted and detained with two questions. First, is the person a mentally ill person or a mentally disordered person? Secondly, if yes, is there no other care of a less restrictive kind which is appropriate and reasonably available to the person?
No doubt, each question required clinical assessment and judgment, and each had to be answered either yes or no. But if the person was judged to be a mentally ill person, the Act required not only that ‘any restriction on the liberty [of that person] and any interference with their rights, dignity and self-respect [be] kept to the minimum necessary in the circumstances’ (s 4(2)(b)), but also that, unless the medical superintendent was of the opinion that no other care of a less restrictive kind was appropriate and reasonably available, the person not be detained or further detained. Hence, determining that a person was a ‘mentally ill person’ did not entail that the person must be, or must continue to be, involuntarily admitted to and detained in a hospital.
Inconsistent duties
The core of the relatives’ complaint in this matter is that each was injured because a decision was made not to continue to detain a mentally ill person. But, as in Sullivan, those who made that decision had other duties. Particularly relevant was the obligation imposed by s 20 not to detain or continue to detain a person unless the medical superintendent was of the opinion that no other care of a less restrictive kind was appropriate and reasonably available to the person. Performance of that obligation would not be consistent with a common law duty of care requiring regard to be had to the interests of those, or some of those, with whom the mentally ill person may come in contact when not detained. And, as explained in Sullivan, ‘if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists’.
If a hospital or doctor were to owe to those with whom a mentally ill person may later come in contact a duty to take reasonable care to protect those others from risk of physical harm (or psychiatric injury caused by learning of physical harm) done by the mentally ill person, the hospital or doctor would be required to ask whether that risk is foreseeable and not insignificant and then take whatever steps a reasonable person would take in response to that risk. Foreseeable risks are those that are not far-fetched or fanciful.
If a person is a mentally ill person, the risk of that person acting irrationally will often not be insignificant, far-fetched or fanciful. And, in such cases, there will often be a risk that the irrational action will have adverse consequences. In some cases, there will be a risk that the mentally ill person will engage in conduct that may have adverse physical consequences for others, whether because the conduct is directed at another or because it otherwise causes adverse physical consequences. In some cases, perhaps many, the reasonable person in the position of the hospital or doctor would respond to those risks by continuing to detain the patient for so long as he or she remains a mentally ill person, thus avoiding the possibility that the risk of harm to others will eventuate. But that is not what the Mental Health Act required. It required the minimum interference with the liberty of a mentally ill person. It required (s 20) that the person be released from detention unless the medical superintendent of the hospital formed the opinion that no other care of a less restrictive kind was appropriate and reasonably available to that person.[78]
[77]Ibid 280–1 [25] (emphasis altered).
[78]Ibid 281–2 [27]–[31] (citations omitted).
The general principles as to coherence and inconsistency were applied in Southern Properties (WA) Pty Ltd v Executive Director, Department of Conservation and Land Management (‘Southern Properties’):
The prima facie statement of duty is subject to limitations arising from the principle of coherence. There will be no duty at common law to the extent that it is incompatible with other duties, statutory or otherwise, imposed on a defendant. Incompatibility includes, but is not confined to, situations where a statute expressly or impliedly excludes a common law duty. This is explained by the High Court in Sullivan v Moody (2001) 207 CLR 562. The court said (at [60]):
The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable … But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of … exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.
The question is whether a duty of the kind for which the appellants contend can rationally be related to the functions, powers and responsibilities of the various persons and authorities who are alleged to owe that duty.[79]
[79](2012) 42 WAR 287, 306 [95]–[96] (citations omitted) (‘Southern Properties’).
In Southern Properties, officers of the Department of Conservation and Land Management carried out prescribed burning on land adjoining a vineyard. Smoke taint ruined the grapes, causing a $620,000 loss. Southern Properties argued the Department owed them a general duty to avoid smoke damage to their grapes. The Court rejected that claim concluding the asserted duty was incompatible with the primary purpose of the Department’s statutory functions. Further, when the power to carry out prescribed burning was to be exercised for the benefit of the community as a whole, the alleged duty would not be imposed in circumstances where classes of people and individuals who may be affected by the Department’s decisions have competing and conflicting interests.[80]
[80]Ibid 308 [104].
The majority concluded:
It is clear from the statutory language and its scope and purpose that the objective of minimising the risk of smoke from a prescribed burn impacting on sensitive areas is subsidiary to the primary objects of the power. The Forest Management Plan uses the term ‘minimise’ rather than avoid. By ‘subsidiary’ it is meant that where there is a conflict between the furtherance of a primary purpose of the power and minimising the risk of smoke impact, the latter must yield.
Further, it is of particular significance that the Department exercises its powers in relation to prescribed burning for the benefit of the south-west community as a whole. Different classes of interested parties and even individuals within classes will have interests which are in conflict. For example, minimising the risk of smoke over the appellants’ vineyards increased the risk of fire escaping over the western boundary of DPHB8 where there are residential dwellings.
The common law will not impose a duty on the Department that is incompatible with the primary purposes of its statutory functions (that is, its duties and powers) and, when the power is to be exercised for the benefit of the south-west community as a whole, where persons potentially affected by the Department’s decisions have competing and conflicting interests.[81]
[81][102]–[104] (McClure P, Buss JA agreeing).
Although Block contended that in the pleaded circumstances, the alleged common law duty is not, in the broad, inconsistent with the statutory duties, on careful analysis the submission must fail. I discussed above the inconsistencies between the content of the general duty alleged and the detail of the obligations and responsibilities under the statutory scheme. Like reasoning to that of the courts in these cases applies to support my conclusions.
The duty that Block contends for would distort the statutory scheme and would upset a carefully considered balance of competing interests as stated above. Powercor had duties under the Line Clearance Code not just to engage in appropriate bushfire mitigation but also to recognise environmental concerns. These duties and responsibilities were not based on simple notions of foreseeability of a bushfire risk. The tensions between ‘stakeholders’ over bushfire mitigation and environmental concerns were well documented in the 2015 regulatory impact statement.[82]
[82]Jaguar Consulting Pty Ltd, above n 72.
The core of Block’s complaint is that Powercor did not design and implement a system that was capable of reasonably mitigating the risk of plantation trees falling onto or otherwise coming into contact with an electric line. Powercor had other obligations that preserved environmental considerations in the balance of the decision about clearance. The risk of bushfire caused by a 30 metre tree failing and coming into contact with the powerline was not far-fetched or fanciful, but the performance of an obligation found in the general duty to maintain the network under s 98 of the ES Act to clear a 30 metre strip of healthy blue gum trees alongside the powerline would plainly distort the statutory scheme for tree clearance. Subject to exceptions that are not made relevant on the pleaded case, Powercor was not permitted to remove a healthy native tree from the land of another beyond the clearance space.
A duty of care ordinarily requires the repository of the duty have control over the risk. In Brodie, Gaudron, McHugh and Gummow JJ stated:
Whatever may be the general significance today in tort law of the distinction between misfeasance and non-feasance, it has become more clearly understood that, on occasions, the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance. [83]
[83](2001) 206 CLR 512, 559 [102] (citations omitted).
Here the risk is alleged to be in the trees, not the powerlines. For the reasons already stated, Powercor was not in control of the risk that the Tree would fall because it had no power to clear all trees that might in theory have fallen and made contact with its powerline.
In Crimmins, Gaudron J stated:
Legislation establishing a statutory body may exclude the operation of the common law in relation to that body’s exercise or failure to exercise some or all of its powers or functions. Even if the legislation does not do so in terms, the nature or purpose of the powers and functions conferred, or of some of them, may be such as to give rise to an inference that it was intended that the common law should be excluded either in whole or part. That is why distinctions are sometimes drawn between discretionary and non-discretionary powers, between policy and operational decisions and between powers and duties. Where it is contended that a statutory body is not subject to a common law duty in relation to the exercise or non-exercise of a power or function because of the nature or purpose of that power, what is being put is that, as a matter of implication, the legislation reveals an intention to exclude the common law in relation to the exercise or non-exercise of that power.[84]
[84](1999) 200 CLR 1, 19 [27] (citations omitted).
Kirby J said:
The beginning of a consideration of the duty of care point requires the examination of the legislative scheme governing the Authority’s functions, powers, rights and responsibilities at the time the deceased was working at the Port of Melbourne when he was exposed to asbestos fibres. This is the approach that is required both by authority in this country, in England and elsewhere. If, from the terms of the legislation, it is plain that the Parliament has ruled out a co-existence of a common law duty of care with the operation of the statute, or has imposed on the statutory body discretionary functions which are incompatible with the existence of an action by a person affected, liability will be excluded on a true reading of the legislation.[85]
[85]Ibid 72 [203] (citations omitted).
Next, Block contended that the vulnerability of persons who depend on the proper exercise of the relevant power is a relevant salient feature to be considered in light of the degree and nature of control over the risk of harm.[86] Block placed emphasis on the risk and danger associated with the generation and transmission of electrical energy of a lethal voltage. However, the submission does not assist Block as the notion of vulnerability that they advanced fails to distinguish between accidental contact that causes ignition of a fire and contact that is caused by Powercor’s failure to exercise proper control over the risk of harm. The real issue in the present circumstances is control of risk rather than vulnerability to failure to control that risk. I do not find a focus on the vulnerability of the plaintiffs to damage by bushfire to be a useful analytical tool for revealing the duty of care alleged by Block in this proceeding.
[86]Citing Stuart (2009) 237 CLR 215, 254 [113].
Powercor also submitted Block’s asserted general duty would give rise to indeterminacy of liability. Having regard to my conclusion that there is no general duty recognised at law, it is unnecessary to rule on this submission. However I will briefly identify the argument put and my concerns about it.
Powercor contended, in its written submission, that the imposition of a general duty beyond the statutory regime, in addition to being inconsistent with it, would place an intolerable and unrealistic burden on Powercor. It would mean that despite the specific regulative regime for the area covered by Powercor’s network, Powercor is required to go beyond those parameters and to determine if trees that are neither hazard trees nor within the clearance space (i.e. any other tree) might ‘pose the potential hazard’ and strike a powerline. In going well beyond the statutory regime, such an obligation gives rise to an indeterminacy of liability.
The submission was based upon an observation by the High Court in Sullivan:
There is also a question as to the extent, and potential indeterminacy, of liability. In the case of a medical practitioner, the range of people who might foreseeably (in the sense earlier mentioned) suffer some kind of harm, as a consequence of careless diagnosis or treatment of a patient, is extensive. [87]
[87](2001) 207 CLR 562, 582 [61].
This submission was misconceived in its focus on the magnitude of the potential tree risk to be managed (removing massive numbers of healthy trees). That issue is resolved in the manner I have already discussed. Indeterminacy of risk is not to be equated with indeterminacy of liability. The High Court’s observations in Sullivan made clear that was not the focus of the concept of indeterminacy:
Furthermore, the attempt by the appellants to avoid the problem of the extent of potential duty and liability is unconvincing. They sought to limit it to parents. But, if it exists, why should it be so limited? If the suspected child abuser were a relative other than a parent, or a schoolteacher, or a neighbour, or a total stranger, why should that person be in a position different from that of a parent? The logical consequence of the appellants' argument must be that a duty of care is owed to anyone who is, or who might become, a suspect. [88]
[88]Ibid 582–3 [63].
In the American case of Ultramares Corp. v Touche (‘Ultramares’), Chief Judge Cardozo famously described a floodgates situation as one that would expose defendants ‘to a liability in an indeterminate amount for an indeterminate time to an indeterminate class’,[89] finding the implication of such a duty inappropriate. Ultramares was a negligent misrepresentation case and it is in that context and in pure economic loss cases that indeterminacy has been mostly considered. In Bryan v Maloney, Brennan J said, in a pure economic loss context:
If liability were to be imposed for the doing of anything which caused pure economic loss that was foreseeable, the tort of negligence would destroy commercial competition, sterilize many contracts and, in the well-known dictum of Chief Judge Cardozo, expose defendants to potential liability ‘in an indeterminate amount for an indeterminate time to an indeterminate class’. [90]
[89]174 N.E. 441 (1932) (‘Ultramares’).
[90](1995) 182 CLR 609, 632, (citations omitted).
In oral submissions, Powercor refocused its submission from a concept of indeterminacy in identification of potential risk trees to indeterminacy in the members of the class of persons who might suffer loss by reason of any breach of obligation.
Powercor cited Electro Optic Systems Pty Ltd v New South Wales (‘Electro Optic Systems’),[91] which arose out of bushfires in New South Wales and the Australian Capital Territory in January 2003. The plaintiffs alleged that NSW was vicariously liable for breach of a duty to take reasonable care in the exercise of statutory powers conferred by NSW legislation. The claim was dismissed. An issue was raised whether the posited duty of care did not exist because of indeterminacy of liability. In the leading judgment, Jagot J observed:
The probabilities of harm may change from day to day or moment to moment depending on the weather. At any time the probability of harm may or may not include properties to an unknown and unknowable extent in any direction from the Park. As NSW submitted, the primary judge’s formulation of the duty, whether expressed in his Honour’s terms or those advocated by the plaintiffs, involves no class which can be identified in prospect. It is not simply that the individual members of the class cannot be identified. The class itself is indeterminate. Membership may extend to property owners who are located in all directions from the Park to an unknowable extent depending on factors outside the defendant’s control (weather and other fires with which the fire from the Park may join). The class may change from moment to moment depending on those other uncontrollable factors. These considerations also weigh heavily against the existence of the posited duty of care.[92]
[91](2014) 10 ACTLR 1 (‘Electro Optic Systems’).
[92]Ibid 84 [353].
I have some reservations about the breadth and focus of this statement, particularly as it is being applied by the court in the context of a mass tort class action. Powercor’s contention, which became that liability cannot be imposed for failing to do anything that might foreseeably cause a bushfire that would damage an indeterminate class of victims (assessed prospectively) in circumstances where the class of potential victims could change as the fire burned, may not be consistent with the way in which the concept of indeterminacy has developed.
The pure economic loss cases speak of imposing a duty by reference to the knowledge of the tortfeasor of an ascertainable class of persons exposed to risk who were unable to protect themselves from harm.[93] It is unclear how the concept of indeterminacy discussed by the court in Electro Optic Systems is consistent with what the High Court has said in these cases.
[93]See, eg, Perre v Apand Pty Ltd (1999) 198 CLR 180.
The issue of the extent and potential indeterminacy of liability also arose before the High Court in McKenna but the court did not find it necessary to consider that issue.[94]
[94](2014) 253 CLR 270.
As I noted above, there are no issues in respect of pure economic loss raised on the pleadings between Block and Powercor. That might be sufficient to defer this question to a case where it properly arises, but Powercor advanced the submission knowing the argument on the application was confined to damage in the form of physical loss and economic loss arising from physical loss. I consider, by reference to what was said in Perre v Apand Pty Ltd,[95] that the issue is unsuited for consideration on a summary judgment application. The development of the principles by which indeterminacy may apply in relation to the members of the class of a mass tort proceeding in respect of property damage with attendant economic loss should await an occasion when the issue properly arises.
[95](1999) 198 CLR 180, 184.
Finally, turning to Block’s nuisance claim, Block must establish interference by Powercor with their use or enjoyment of land that was both substantial and unreasonable. Mere interference that causes damage will not constitute a nuisance,[96] such as the passage of an uncontrolled bushfire over a plaintiff’s land. The law of nuisance strikes a balance between the competing rights of neighbours. Wright LJ’s classic explanation of this in Sedleigh-Denfield v O’Callaghan was:
An occupier may make in many ways a use of his land which causes damage to the neighbouring landowners and yet be free from liability … A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society.
…
But the gist of the present action is the unreasonable and unjustified interference by the defendant in the user [sic] of his land with the plaintiff's right to enjoy his property. Negligence, moreover, is not a necessary condition of a claim for nuisance. What is done may be done deliberately, and in good faith and in a genuine belief that it is justified. [97]
[96]Sleeman v SPI Electricity Pty Ltd [2014] VSC 49 [34]; Sedleigh-Denfield v O’Callaghan [1940] AC 880, 903.
[97]Sedleigh-Denfield v O’Callaghan [1940] AC 880, 903–4 (Wright LJ).
Whether interference is unreasonable is an objective question, requiring consideration of a number of factors, including:
(a) the ‘nature and extent of harm or interference’;[98]
[98]Marsh v Baxter (2015) 49 WAR 1, 43 [248] (McLure P); Sleeman v SPI Electricity Pty Ltd [2014] VSC 49 [35]; Southern Properties (2012) 42 WAR 287, 310 [118].
(b) ‘the hypersensitivity (if any) of the user or use of the plaintiff’s land’ although abnormal sensitivity may not entitle additional protection;[99]
[99]Marsh v Baxter (2015) 49 WAR 1, 43 [248]–[249] (McLure P); Munro v Southern Dairies Ltd [1955] VLR 332, 335.
(c) ‘the nature of established uses in the locality’;[100]
(d) ‘whether all reasonable precautions were taken to minimise any interference’;[101] and
(e) ‘the type of damage suffered’.[102]
[100]Marsh v Baxter (2015) 49 WAR 1, 43 [248] (McLure P).
[101]Ibid.
[102]Ibid.
In Southern Properties, the ‘fault’ of a defendant was considered:
This exercise involves weighing the respective rights of the parties in the use of their land to make a value judgment as to whether the interference is unreasonable. Although the ‘fault’ of the defendant may be a relevant consideration in an assessment of whether the interference with the claimant’s enjoyment of land is unreasonable, the duty not to expose one’s neighbours to nuisance is not necessarily discharged by the exercise of reasonable care. Liability in nuisance is strict. Once a prima facie case has been established, it is for the defendant to prove its defence. [103]
[103](2012) 42 WAR 287, 310 [119].
Block’s contention was that the transmission of electricity in the weather conditions prevailing on St Patrick’s Day 2018 created or increased risks that were reasonably foreseeable by Powercor of a bushfire that would unreasonably interfere with Block’s use of their land. Block contended that Powercor’s powers were not controlled and circumscribed by the statutory framework and the issues arising on the cause of action in nuisance are linked inextricably with findings of fact and are not appropriately determined summarily.
I cannot accept this submission. I have found that Block’s contention that Powercor’s powers were not controlled and circumscribed by the statutory framework is untenable. Further, Powercor’s use of its land to transmit electric current along its powerlines per se is an established land use entitlement that could never be said to comprise a substantial and unreasonable interference with Block’s use and enjoyment of their land. That is why Block alleged that the interference was the Gazette bushfire. Block’s complaint is that Powercor so used its land when it did not have a system that was capable of reasonably mitigating the risk of plantation trees falling onto the powerline. Because that is the manner in which Powercor is said to be responsible for the fire, it is the manner in which Block contends that Powercor substantially interfered with Block’s use of their land.
However, the statutory scheme is, as discussed above, a carefully regulated balancing of the competing uses of land in relation to tree clearance. The proposition that Powercor created, or aggravated, the risk of bushfire on St Patrick’s Day in the pleaded circumstances — that is, by failing to clear healthy blue gums in a plantation — is fanciful. The claim in nuisance that is articulated by Block is not coherent with the responsibilities and obligations created by the statutory scheme.
The proceeding will be summarily dismissed.
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