Herridge v Electricity Networks Corporation t/as Western Power [No 4]

[2019] WASC 94

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION	:	DANIEL HERRIDGE & ORS -v- ELECTRICITY NETWORKS CORPORATION t/as WESTERN POWER [No 4] [2019] WASC 94

CORAM	: LE MIERE J
HEARD	:  16-20, 23-27, 30 & 31 JULY, 1-3, 6-10, 13-15, 27-30 AUGUST 2018
DELIVERED	: 27 MARCH 2019
FILE NO/S	:  CIV 2259 of 2015
BETWEEN	: DANIEL HERRIDGE

and the Plaintiffs listed in Schedule 1 to the

Further Amended Writ of Summons

Plaintiffs

AND

ELECTRICITY NETWORKS CORPORATION

t/as WESTERN POWER

First Defendant

VENTIA UTILITY SERVICES PTY LTD (Formerly

known as Thiess Services Ltd)

Second Defendant

NOREEN MERLE CAMPBELL

Third Defendant

FILE NO/S	:	CIV 1239 of 2016
BETWEEN	:	KAREN PATRICIA ADAMS AND THE PLAINTIFFS LISTED IN SCHEDULE 1 TO THE WRIT OF SUMMONS

[2019] WASC 94

Plaintiff

AND

ELECTRICITY NETWORKS CORPORATION t/as

WESTERN POWER

First Defendant

VENTIA UTILITY SERVICES PTY LTD (Formerly

known as Thiess Services Ltd)

Second Defendant

NOREEN MERLE CAMPBELL

Third Defendant

FILE NO/S	:	CIV 1445 of 2016
BETWEEN	:	ANTHONY ADAMS AND THE PLAINTIFFS LISTED IN SCHEDULE 1 TO THE WRIT OF SUMMONS
Plaintiff
AND
ELECTRICITY NETWORKS CORPORATION t/as WESTERN POWER
First Defendant
VENTIA UTILITY SERVICES PTY LTD (Formerly known as Thiess Services Pty Ltd)
Second Defendant
NOREEN MERLE CAMPBELL
Third Defendant
FILE NO/S	:	CIV 1841 of 2016
BETWEEN	:	JODIS POWELL AND THE PLAINTIFFS LISTED IN SCHEDULE 1 TO THE WRIT OF SUMMONS
Plaintiff

[2019] WASC 94

AND

ELECTRICITY NETWORKS CORPORATION t/as

WESTERN POWER

First Defendant

VENTIA UTILITY SERVICES PTY LTD (Formerly

known as Thiess Services Pty Ltd)

Second Defendant

NOREEN MERLE CAMPBELL

Third Defendant

Catchwords:

Negligence - Duty of care - Breach of duty - Causation - Non-delegable duty -
Agency - Apportionment of damages

Nuisance - Enjoyment of land - Interference - Whether damages for nuisance apportionable - Apportionment of damages

Damages - Action for damages for negligence and nuisance for loss and damage resulting from bushfire - Test case plaintiffs - Assessment of damages - Matters to be considered in assessment of damages

Legislation:

Civil Liability Act 2002 (WA), s 3, s 5AK, s 5AI, s 5B, s 5C, s 5W, s 5X, s 9
Electricity Act 1945 (WA), s 5, s 25, s 33AA
Electricity Corporation Act 1994 (WA)
Electricity Corporations Act 2005 (WA), s 41, s 43
Electricity Corporations Amendment Act 2013 (WA)
Electricity Regulations 1947 (WA), reg 253, reg 254
Energy Coordination Act 1994 (WA), s 5, s 7
Energy Operators (Powers) Act 1979 (WA), s 4, s 28, s 46, s 49

Energy Safety Act 2006 (WA), s 4, s 7, s 12, s 13

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1974

[2019] WASC 94

(WA), s 7

State Electricity Commission Act 1945 (WA)

Result:

Second and third defendants are each liable to the plaintiffs in negligence and in
nuisance
Second defendant is liable for 70% of the plaintiffs' damages and third defendant
is liable for 30% of the plaintiffs' damages

Plaintiffs' claims against first defendant should be dismissed

Category: A

Representation:

CIV 2259 of 2015

Counsel:

Plaintiffs	:	Mr L W L Armstrong QC & Mr T C Smyth
First Defendant	:	Mr B Dharmananda SC & Mr M J Sims
Second Defendant	:	Mr G M Watson SC & Mr J Emmett
Third Defendant	:	Mr J C Giles SC & Mr T N Owen

Solicitors:

Plaintiffs	:	Slater & Gordon Lawyers
First Defendant	:	DLA Piper

Second Defendant : Corrs Chambers Westgarth

Third Defendant : MinterEllison

CIV 1239 of 2016

Counsel:

Plaintiff	:	Mr M Whitten QC & Mr P Mendelow
First Defendant	:	Mr B Dharmananda SC & Mr M J Sims
Second Defendant	:	Mr G M Watson SC & Mr J Emmett
Third Defendant	:	Mr J C Giles SC & Mr T N Owen

[2019] WASC 94

Solicitors:

Plaintiff	:	Hall & Wilcox
First Defendant	:	DLA Piper

Second Defendant : Corrs Chambers Westgarth

Third Defendant : MinterEllison

CIV 1445 of 2016

Counsel:

Plaintiff	:	Mr R J Price
First Defendant	:	Mr B Dharmananda SC & Mr M J Sims
Second Defendant	:	Mr G M Watson SC & Mr J Emmett
Third Defendant	:	Mr J C Giles SC & Mr T N Owen

Solicitors:

Plaintiff	: Civic Legal
First Defendant	: DLA Piper

Second Defendant : Corrs Chambers Westgarth

Third Defendant : MinterEllison

CIV 1841 of 2016

Counsel:

Plaintiff	:	Mr M Whitten QC & Mr P Mendelow
First Defendant	:	Mr B Dharmananda SC & Mr M J Sims
Second Defendant	:	Mr G M Watson SC & Mr J Emmett
Third Defendant	:	Mr J C Giles SC & Mr T N Owen

Solicitors:

Plaintiff	:	Hall & Wilcox
First Defendant	:	DLA Piper

Second Defendant : Corrs Chambers Westgarth

Third Defendant : MinterEllison

[2019] WASC 94

Case(s) referred to in decision(s):

AD & SM McLean Pty Ltd v Meech (2005) 13 VR 241 Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239

CLR 27

Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660
Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH (2009) QB 725
Brodie v Singleton Shire Council (2001) 206 CLR 512
Burnie Port Authority v General Jones Pty Ltd (1992) 179 CLR 520
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR

503

Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1

Electro Optic Systems Pty Ltd v State of New South Wales; West v State of

New South Wales (2014) 180 ACTR 1

Fabre v Lui [2015] NSWCA 157
Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486
Fox v Leighton Contractors Pty Ltd [2008] NSWCA 23; (2008) 170 IR 433
Freeman v Medical Practitioners Board of Victoria (2000) 17 VAR 106
Gales Holdings Pty Ltd v Tweed Shire Council [2013] NSWCA 382
Goldman v Hargrave (1967) 1 AC 645
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Hargrave v Goldman (1963) 110 CLR 40
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Hoyts Pty Ltd v O'Connor (1928) 40 CLR 566
Hunter v Canary Wharf [1997] AC 655

Insurance Australia Ltd v HIH Casualty & General Insurance Ltd (in liq) (2007)

18 VR 528

Kelly v The Queen (2004) 218 CLR 216
Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1
Lindner v Corporation of the City of Marion [2015] SASC 152
Mt Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104

National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR

569

Ng Huat Seng v Munib Mohammad Madni [2017] SGCA 58 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 Orchard Holdings Pty Ltd v Paxhill Pty Ltd [2012] WASC 271

Powercor Australia Ltd v Thomas (2012) 43 VR 220

[2019] WASC 94

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Pyrenees Shire Council v Day (1998) 192 CLR 330

Reinhold v New South Wales Lotteries Corporation (No 2) (2008) 82 NSWLR

762

Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330
RSPCA (Victoria) v Holdsworth [2015] VSCA 243
Sedleigh-Denfield v O'Callaghan [1940] AC 880

Seven Oaks Maidstone and Tunbridge Railway Company v London Chatham

and Over Railway Company (1879) 11 Ch D 625

Southern Properties (WA) Pty Ltd v Executive Director, Department of

Conservation and Land Management (2012) 42 WAR 287

Southport Corporation v Esso Petroleum Co Ltd [1953] 2 All ER 1204, 1207
Stuart v Kirkland-Veenstra (2009) 237 CLR 215
Sullivan v Moody (2001) 207 CLR 562
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161
Sydney Water Corporation v Turano (2009) 239 CLR 51
Tame v New South Wales (2002) 211 CLR 317
Thomas v Powercor Australia Ltd [2011] VSC 586
Volman t/as Volman Engineering v Lobb [2005] NSWCA 348
Weber v Greater Hume Shire Council [2018] NSWSC 667
Wollington v State Electricity Commission of Victoria (No 2) [1980] VR 91
Woodland v Swimming Teachers Association [2014] AC 537
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515
Wyong Shire Council v Shirt (1980) 146 CLR 40
Zheng v Cai (2009) 239 CLR 446

[2019] WASC 94

Table of Contents

A. SUMMARY ......................................................................................................................... 12

B. THE ISSUES BEING TRIED ............................................................................................. 15

C.	OVERVIEW ........................................................................................................................ 15 The fire ................................................................................................................................. 15 Immediate cause of the fire - the PA pole failure ................................................................. 17
Area affected ......................................................................................................................... 17
The plaintiffs......................................................................................................................... 17 Western Power ...................................................................................................................... 18

Status of Western Power .................................................................................................. 18
Western Power distribution network ................................................................................ 19

Western Power network connection to PA pole ............................................................... 20

Thiess .................................................................................................................................... 22

Thiess' business ................................................................................................................ 22
Thiess contract with Western Power ................................................................................ 22
19 July 2013 works ........................................................................................................... 22

10 January 2014 works ..................................................................................................... 24

Mrs Campbell ....................................................................................................................... 24

Energy Safety ....................................................................................................................... 24

Status of Energy Safety .................................................................................................... 24
Statutory provisions conferring any relevant function on Director .................................. 25
Private overhead powerlines brochure ............................................................................. 25

Parkerville Bushfire 2014 Report ..................................................................................... 27

D. NON-EXPERT EVIDENCE ............................................................................................... 28
Evidence adduced by Herridge plaintiffs ............................................................................. 28

Mr Duffy ........................................................................................................................... 28
Mrs Elwood ...................................................................................................................... 28
Mr Elwood ........................................................................................................................ 28
Mr Lulich .......................................................................................................................... 28

Mr Cechner ....................................................................................................................... 29

Evidence adduced by IAG and Alliance plaintiffs ............................................................... 29

Stuart Campbell ................................................................................................................ 29

Evidence adduced by Western Power .................................................................................. 29

Mr Ogilvie ........................................................................................................................ 29

Evidence adduced by Thiess ................................................................................................. 29

Mr Bartosch ...................................................................................................................... 29

Evidence adduced by Mrs Campbell .................................................................................... 30

Mrs Campbell ................................................................................................................... 30

Documentary evidence ......................................................................................................... 31

Electronic trial book ......................................................................................................... 31

Energy Safety bushfire report ........................................................................................... 31

E.

EXPERT EVIDENCE .......................................................................................................... 32 The conclaves ....................................................................................................................... 32 Conclave 1 ............................................................................................................................ 32 Conclave 2 ............................................................................................................................ 33 Conclaves 3 and 4 ................................................................................................................. 34

F.

THE PA POLE ..................................................................................................................... 35 Ownership of the PA pole and things on and attached to it ................................................. 35 Cause of the PA pole failure ................................................................................................. 36

[2019] WASC 94

Condition of the PA pole ...................................................................................................... 37

Indicative degradation model ........................................................................................... 37
Pole in substantially same condition for more than 5 years prior to failure ..................... 40
The PA pole was unserviceable in July 2013 and some years prior................................. 41
The PA pole internally in substantially same condition in July 2013 as January 2014 ... 43
The PA pole internally and externally in substantially same condition in January 2010 as

January 2014 ..................................................................................................................... 45

G. THIESS WORKS 19 JULY 2013 .................................................................................... 45

Contractual arrangement ....................................................................................................... 45

July 2013 works involved ..................................................................................................... 45
Did work alter the load on the PA pole? .............................................................................. 46

What inspection did Thiess make of the PA pole? ............................................................... 46

H. WESTERN POWER STATUTORY FRAMEWORK ........................................................ 53 Functions .............................................................................................................................. 53 Powers - enter land, work on pole, replace pole ................................................................... 53 Electricity Act s 25(1) ........................................................................................................... 54

Issues concerning s 25(1)(a) and s 25(1)(b) ..................................................................... 54
Principles of statutory interpretation ................................................................................ 55
Context of s 25 .................................................................................................................. 55
Text of s 25 ....................................................................................................................... 55
Overview of s 25(1) .......................................................................................................... 56
Meaning of service apparatus ........................................................................................... 57
Proper Construction of s 25(1)(a) ..................................................................................... 58
Section 25(1)(a) does not impose duty on Western Power to maintain the PA pole ....... 58
Proper construction of s 25(1)(b)...................................................................................... 59
Service apparatus 'of' network operator ............................................................................ 60
The position on the consumer's premises ......................................................................... 62

Duty imposed on Western Power by Electricity Act s 25(1)(b) ....................................... 63

Electricity Regulations 1947 (WA) reg 253(1)(a) and reg 254 ............................................ 64

I. CONTRACTUAL FRAMEWORK BETWEEN WESTERN POWER AND THIESS ....... 65 Issues concerning the Thiess contract .................................................................................. 65 Principles of interpretation of contracts ................................................................................ 65 Umbrella Deed ...................................................................................................................... 66

Relationship between parties ............................................................................................ 66
Quality of service.............................................................................................................. 67

Indemnities ....................................................................................................................... 67

Western Power Work Practice Manual ................................................................................ 68

The Manual ....................................................................................................................... 68 work .................................................................................................................................. 68

J. DUTY OF CARE - LEGAL PRINCIPLES .......................................................................... 71 General principles ................................................................................................................. 71

Foreseeability of harm ...................................................................................................... 75
Control exercised over risk of harm ................................................................................. 75
Vulnerability of those who depend on proper exercise of power ..................................... 77
Consistency of asserted duty with statute ......................................................................... 77
Potential indeterminacy of liability .................................................................................. 77
Contractual duties and duty of care to third parties .......................................................... 78
Occupier of land from where risk emanates ..................................................................... 79

[2019] WASC 94

Non-delegable duty ............................................................................................................... 80

Agency .................................................................................................................................. 82

K. NEGLIGENCE CASE AGAINST WESTERN POWER ................................................... 82 No duty to make regular inspections and maintenance ........................................................ 83 If Western Power had a duty to inspect and maintain it is liable in negligence ................... 84 Western Power owed a duty to make pre-work inspections ................................................. 85 Plaintiffs allege Western Power had duty to ensure reasonable care was taken .................. 86 No duty to ensure reasonable care was taken ....................................................................... 87 No breach of duty in delegating July 2013 works ................................................................ 96

The risk of harm ............................................................................................................... 97
The risk was foreseeable................................................................................................... 97
The risk was not insignificant ........................................................................................... 97
Precautions Western Power could take ............................................................................ 97

A reasonable person would not have taken those precautions ......................................... 97

Thiess not Western Power's agent ...................................................................................... 103
No duty to notify landowner ............................................................................................... 106

Conclusion: Western Power not liable in negligence ........................................................ 108

L. NUISANCE PRINCIPLES ................................................................................................ 109 Plaintiffs' private nuisance claims ...................................................................................... 109 Defendants' defences to nuisance claims - common themes .............................................. 109 Nuisance - general principles ............................................................................................. 109 Title to sue - interest in land ............................................................................................... 110 Who can be sued - who 'created' the nuisance? .................................................................. 111

M. PLAINTIFFS' CASE IN NUISANCE AGAINST WESTERN POWER ......................... 114

N. NEGLIGENT CASE AGAINST THIESS ........................................................................ 114 The pleaded Thiess duty of care ......................................................................................... 114 Breach of duty .................................................................................................................... 121

Breaches alleged by plaintiffs......................................................................................... 121
Thiess denies breach ....................................................................................................... 121
Risk of harm and precautions (CLA s 5B) ..................................................................... 122
The risk of harm ............................................................................................................. 122
The risk was foreseeable................................................................................................. 122
The risk was not insignificant ......................................................................................... 122
Precautions Thiess could take ........................................................................................ 122
A reasonable person would have taken those precautions ............................................. 123

Thiess breached its duty of care ..................................................................................... 125

Causation - general principles ............................................................................................ 129

Thiess denies causation .................................................................................................. 129

Causation established ..................................................................................................... 130

Conclusion - Thiess liable in negligence ............................................................................ 131

O. Plaintiffs' claim ................................................................................................................... 131

NUISANCE CASE AGAINST THIESS ........................................................................... 131 Thiess is liable in nuisance ................................................................................................. 133

P. NEGLIGENCE CASE AGAINST MRS CAMPBELL ..................................................... 133 Duty of care ........................................................................................................................ 133 Mrs Campbell denies duty of care ...................................................................................... 134 Mrs Campbell owed a duty of care ..................................................................................... 134 Breach of duty .................................................................................................................... 136

[2019] WASC 94

Risk of harm and precautions (CLA s 5B) ..................................................................... 136
The risk of harm ............................................................................................................. 136
The risk was foreseeable................................................................................................. 136
The risk was not insignificant ......................................................................................... 137
Precautions Mrs Campbell could take ............................................................................ 137

Would a reasonable person have taken those precautions? ............................................ 137

Mrs Campbell breached duty of care .................................................................................. 139
Causation established ......................................................................................................... 139

Mrs Campbell is liable in negligence ................................................................................. 140

Q.

PLAINTIFFS' CASE IN NUISANCE AGAINST MRS CAMPBELL ............................ 140 Plaintiffs' claim ................................................................................................................... 140 Mrs Campbell denies liability ............................................................................................. 140 Mrs Campbell is liable in nuisance..................................................................................... 141

R.

APPORTIONMENT .......................................................................................................... 142 General principles ............................................................................................................... 142 Apportionment - nuisance .................................................................................................. 142

Are damages for nuisance apportionable? ...................................................................... 142

Apportionment ................................................................................................................ 145

Energy Safety ..................................................................................................................... 145

Defendants' claim ........................................................................................................... 145

Energy Safety was not a concurrent tortfeasor ............................................................... 146

The apportionment .............................................................................................................. 146

S.

CLAIMS BETWEEN DEFENDANTS ............................................................................. 148 Western Power claims ........................................................................................................ 148

Against Thiess ................................................................................................................ 148
Against Mrs Campbell .................................................................................................... 148

Against Energy Safety .................................................................................................... 149

Thiess' claims ...................................................................................................................... 149

Against Western Power .................................................................................................. 149

Against Mrs Campbell .................................................................................................... 149

Mrs Campbell's claims ....................................................................................................... 150

T. DAMAGES OF MR AND MRS ELWOOD ..................................................................... 150 The Elwoods ....................................................................................................................... 150 Damage to real property where owner rebuilds .................................................................. 151 Damages for loss of buildings ............................................................................................ 152 Loss of or damage to gardens and grounds ........................................................................ 152 Damage to chattels .............................................................................................................. 154 Damages for personal or voluntary labour ......................................................................... 154 Damages for loss of amenity and inconvenience ............................................................... 156

Are they recoverable? ..................................................................................................... 156

Economic loss - Mr Elwood ............................................................................................... 159
Economic loss - Mrs Elwood.............................................................................................. 162
WANDRRA benefits .......................................................................................................... 163
Miscellaneous claims .......................................................................................................... 166

Quantum of damages to be awarded to Mr and Mrs Elwood ............................................. 167

Final orders ............................................................................................................................. 167

[2019] WASC 94

LE MIERE J

LE MIERE J:

A. SUMMARY

1. On 12 January 2014, a jarrah pole supporting electrical cables fell towards the ground causing electrical arcing which ignited dry vegetation around the base of the pole. The fire spread and became the Parkerville bushfire. The fire burnt approximately 392 ha of bushland resulting in the destruction of 57 homes and a number of outbuildings. A further six homes were partially damaged.

2. The plaintiffs owned property destroyed or damaged by the fire. In these actions, they claim damages for loss and damage they allege was caused by the negligence of, or the nuisance created by, each of the

   defendants.

3. These proceedings have been and were tried together notwithstanding that they consist of four separate actions. The first action, CIV 2259 of 2015, was commenced in 2015 by a number of owners of properties damaged or destroyed by the fire (the Herridge plaintiffs) against the defendants. The Herridge proceedings lead plaintiffs are Mr Gary Elwood and Mrs Sandra Elwood. In CIV 1239 of 2016, CIV 1841 of 2016 and CIV 1445 of 2016 the plaintiffs, by their insurers, also claim damages against the defendants in negligence and nuisance for loss and damage suffered as a result of the fire.

4. The issues determined at the trial were the questions of the defendants' liability (if any) for the failure and collapse of the jarrah pole, and the subsequent fire and damage. The trial also concerned the individual loss claims of the nominated test case plaintiffs, Mr and Mrs Elwood.

5. The jarrah pole fell because fungal decay and damage by termites had caused it to be unable to withstand the forces applied to it by the wind, the lean of the pole and the overhead electrical cable (the service cable) which ran from a network pole to the jarrah pole.

6. The jarrah pole was owned by, and embedded in land owned by, the third defendant, Mrs Campbell. The plaintiffs say that Mrs Campbell was negligent in failing to inspect and maintain the jarrah pole in a condition that was safe and fit for use.

[2019] WASC 94

LE MIERE J

1. The first defendant, Western Power, is the network operator which distributed electricity from its network to Mrs Campbell by a service cable. The plaintiffs say that Western Power was negligent in failing regularly to inspect and maintain the jarrah pole in a safe and fit condition for use. The plaintiffs further say that Western Power was negligent in failing to inspect and maintain the jarrah pole in a safe and fit condition for use when doing work on the pole on 19 July 2013.

2. Western Power engaged the second defendant, Thiess, to carry out the 19 July 2013 works which involved detaching and reattaching the service cable from and to the jarrah pole in the course of replacing the network pole from which the service cable ran. The plaintiffs say that Thiess was negligent in failing to properly train and supervise its line crew which carried out the works such that the line crew failed to properly inspect the jarrah pole and left it in a condition that was unsafe and unfit for use.

3. The plaintiffs further say that, when undertaking work on the jarrah pole, Western Power owed a non-delegable duty of care to the plaintiffs to inspect and maintain the jarrah pole or alternatively, Thiess was Western Power's agent and Western Power is liable for the failure of Thiess to properly inspect the jarrah pole and to leave it in a condition that was safe and fit for use.

4. The plaintiffs say that the fire was a nuisance for which each of the defendants is liable in damages to those plaintiffs who were owners or occupiers of land within the fire area for having created the nuisance.

5. Each of the defendants deny they are liable in damages to the plaintiffs in negligence or in nuisance. The defendants say that if they are liable for damages to the plaintiffs then the damages are apportionable and should be apportioned pursuant to the Civil Liability Act 2002 (WA).

6. For the reasons which follow I make these findings.

   1.          Thiess and Mrs Campbell are each liable to the plaintiffs in negligence and in nuisance.

   2.          Thiess breached the duty of care it owed to the plaintiffs by failing to adequately train and supervise the line crew and by failing to exercise due care and skill in inspecting the jarrah pole in accordance with its contractual obligations and industry standards. Thiess participated in the creation of a nuisance by

[2019] WASC 94

LE MIERE J

failing to inspect the jarrah pole properly, as a result of which the pole remained in service when it was unsafe and unserviceable, and constituted a potential nuisance.

3.          Mrs Campbell breached the duty she owed to the plaintiffs to take reasonable care to inspect and maintain the jarrah pole in a safe and serviceable condition by failing to make any inspection of the pole. Mrs Campbell participated in the creation of a nuisance by retaining and continuing to use the jarrah pole to receive electricity, and not replacing it when it became unserviceable.

4.          Thiess is liable for 70% of the plaintiffs' damages and Mrs Campbell is liable for 30% of the plaintiffs' damages.

5.          The plaintiffs' claims against Western Power should be dismissed.

6.          Western Power did not owe to the plaintiffs a duty to take reasonable care to regularly inspect and maintain the jarrah pole. The imposition of such a duty of care is incompatible with the legislative scheme of the Electricity Act 1945 (WA) in conferring powers, and imposing duties, on Western Power in relation to the maintenance of assets. Furthermore, Western Power did not have the requisite control over the source of the risk of harm, which is the risk that the pole might fail in service due to rot, termites or other damage and cause harm to life or property.

7.          Western Power did owe to the plaintiffs, when undertaking works on the jarrah pole, a duty to take reasonable care to inspect the pole to ascertain whether it was in a safe and fit condition for use in the supply of electricity. That duty was not non-delegable and Western Power discharged that duty by taking reasonable steps to engage and instruct Thiess to do the relevant work. Thiess carried out the work as an independent contractor and not as Western Power's agent. Western Power is not liable in nuisance because it did not create the nuisance.

8.          Mr and Mrs Elwood are entitled to damages of $774,733.20.

[2019] WASC 94

LE MIERE J

B. THE ISSUES BEING TRIED

1. These proceedings are being managed and tried together notwithstanding that they consist of four separate actions. The former Chief Justice directed that the plaintiffs serve a consolidated statement of claim colour coded to show which claims are made by which plaintiff groups in the proceedings. I subsequently ordered that evidence in each of the actions shall be evidence in all of the actions.

2. On 10 November 2017, the court ordered that, subject to exceptions not necessary to refer to at this time, the issues to be determined at this trial are to be:

(a)  all liability issues except any issue as to:

(i)         whether on or about 12 January 2014 a plaintiff was present, or owned or had an interest in property, or carried on business, in or about areas affected by the Parkerville bushfire; and

(ii)        whether a plaintiff suffered loss and damage for the purpose of establishing liability (including any interference with the use or enjoyment of land); and

(b) notwithstanding (a), the loss assessment of the Herridge proceedings lead plaintiffs and any other individuals specified in orders made subsequently, but no other questions of individual quantum.

1. As I have said, the Herridge proceedings lead plaintiffs are Mr Gary Elwood and Mrs Sandra Elwood.

2. Thus, the issues to be tried are the questions of the defendants' liability (if any) for the failure and collapse of the jarrah pole, and the subsequent fire and damage. The trial also concerns the individual loss claims of the nominated test case plaintiffs, Mr and Mrs Elwood.

C. OVERVIEW

The fire

1. On 12 January 2014, a jarrah pole owned by Mrs Campbell and embedded in the land at 180 Granite Road, Parkerville (the Property) owned by Mrs Campbell fell towards the ground. The pole failed

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LE MIERE J

below the ground line due to fungal decay and damage by termites. I
will often refer to the pole as the point of attachment or PA pole.

1. A conductor, described as a service cable, which connected the electricity network operated by Western Power to Mrs Campbell's premises was attached to the PA pole. The PA pole supported the attachment hook and wedge clamp at the point of attachment, Mrs Campbell's main switchboard, and Western Power's meter and fuses within the switchboard.

[2019] WASC 94

LE MIERE J

The image above is a photograph taken by Energy Safety on 12 January

[1] The photograph is figure 2 of volume 1 of the Energy Safety Report of Energy Safety's investigation into

2014 of the PA pole as it was found during the initial site inspection.[1]

1. A conductor, Mrs Campbell's submains cable within a conduit, exited a hole in the bottom of the switchboard and passed down the PA pole into the ground from where it travelled underground to Mrs Campbell's house. As the PA pole fell, the submains cable was pulled through the cable hole at the base of the main switchboard enclosure. This exposed the conductor's insulation to the metallic edges of the hole, damaging the insulation. This caused a short circuit fault resulting in arcing. Hot molten metal globules from the conducts and the metal enclosure dropped to the ground, igniting the dry vegetation around the base of the PA pole and starting the Parkerville bushfire.

Immediate cause of the fire - the PA pole failure

1. At the time of the fire the PA pole had been in place for more than 30 years. The PA pole failed below the ground line due to fungal rot and damage by termites. It fell in a westerly direction. After the fire, the PA pole was lying at an angle of approximately 30 degrees to the ground. The PA pole was held off the ground by the service cable which had fallen against an adjacent unused steel pole.

Area affected

1. The fire burnt approximately 392 ha of bushland resulting in the destruction of 57 homes and a number of outbuildings. A further six homes were partially damaged.

The plaintiffs

1. These four actions, which were heard together, are brought by plaintiffs who claim to have suffered loss or damage as a result of the bushfire. Each of the plaintiffs owned, lived on, had a financial interest in, or personal assets on or near, properties affected by the bushfire. The plaintiffs claim that they suffered loss or damage as a result of the negligence of each of the defendants.

2. The plaintiffs further claim that the bushfire interfered in the use or enjoyment by the plaintiffs, who were owners or occupiers of land within the fire area (the landholders subgroup) of the interest which

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they held in those lands. The plaintiffs say that the bushfire was a nuisance created by each of the defendants and the landholder subgroup suffered loss or damage by the nuisance.

1. The first action, CIV 2259 of 2015, was commenced in 2015 by a number of owners of properties damaged or destroyed by the fire (the Herridge plaintiffs) against the defendants claiming damages for loss and damage as a result of the negligence of, or nuisance caused by, the defendants. In CIV 1239 of 2016, CIV 1841 of 2016 and CIV 1445 of 2016 the plaintiffs, by their insurers, claim damages against the defendants in negligence and nuisance for loss and damage suffered as a result of the fire. The plaintiffs in CIV 1239 of 2016 and CIV 1841 of 2016 are referred to as the IAG/Allianz plaintiffs. The plaintiffs in CIV 1445 of 2016 are referred to as the RAC plaintiffs.

Western Power

Status of Western Power

1. The State Electricity Commission Act 1945 (WA) established the State Electricity Commission of Western Australia (SECWA) and conferred powers and obligations upon it in relation to the generation, transmission, distribution, supply and sale of electricity throughout Western Australia.

2. In 1994, the Electricity Corporation Act 1994 (WA) established the Electricity Corporation which traded as Western Power Corporation. The Electricity Corporation succeeded to the functions of the SECWA to generate, transmit, distribute and sell electricity throughout the State.

3. In 2005, the Electricity Corporations Act 2005 (WA) established four new corporations: Electricity Generation Corporation (which traded as Verve), Electricity Networks Corporation (the first defendant, Western Power), Electricity Retail Corporation (which traded as Synergy) and Regional Power Corporation (which trades as Horizon Power). From 1 January 2014, by the Electricity Corporations Amendment Act 2013 (WA), the corporate name of the Electricity Generation Corporation became the Electricity Generation and Retail Corporation. The Electricity Retail Corporation ceased to be a corporation and merged into the Electricity Generation and Retail Corporation, which became a continuation of the Electricity Retail Corporation trading as Synergy.

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1. Synergy is Western Australia's largest electricity generator and retailer of gas and electricity to consumers. Synergy provides most of the electricity sold to customers in the South West Interconnected System (SWIS). Western Power is the operator of the network through which Synergy, and other electricity suppliers, supply electricity to customers in the SWIS.

2. When Western Power was established on 1 April 2006 it was allocated assets, rights and liabilities of the former Electricity Corporation (trading as Western Power Corporation), relating to Western Power's position as the network operator of the SWIS. Thus, Western Power is the successor to certain of the network assets, rights and liabilities of the former Western Power Corporation.

Western Power distribution network

1. The Electricity Corporations Act s 43 provides that, subject to matters not presently relevant, Western Power's performance of its functions is limited to the SWIS. That is, the interconnected transmission and distribution systems, generating works and associated works located in the south west of Western Australia and extending generally between Kalbarri in the north, Albany in the south and Kalgoorlie to the east and into which electricity is supplied by one or more of the electricity generation plants at Kwinana, Muja, Collie and Pinjar.

2. The number of poles in the distribution network is unclear. Documents or reports in evidence variously estimate the number to be between 625,000 and 758,000. Around 83% of the network distribution poles are wood.

3. The link or conductor by which the distribution network delivers electricity to individual customers is called a service cable when it is above ground. The service cable is owned by Western Power. In suburban areas the service cable typically runs from the nearest distribution pole to the front eave of the consumer's house. In regional and subregional areas, the service cable often runs from the nearest network distribution pole across the property boundary to a privately- owned pole. The service cable will attach to that 'attachment' pole. From there electricity will run to the consumer's residence either underground or above ground. Mr Ogilvie[2] estimated that there are

   [2] At the time of the trial Mr Ogilvie was the Electrical Systems Inspection Manager in the WA Electrical

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over 100,000 consumer poles within the SWIS area. Consumer poles are attachment poles and other poles owned by consumers which carry the consumers' conductors to the point of attachment at the consumers' residences.

Western Power network connection to PA pole

1. Electricity was distributed by Western Power on its distribution network to the Property by a service cable which ran from a network distribution pole, referred to as a termination pole, at the corner of Granite Road and Johnson Road, Parkerville. The termination pole and the service cable are owned and maintained by Western Power. As the service cable approaches the PA pole it passes through a wedge clamp hooked onto an attachment hook which is bolted to the side of the PA pole about 25 cm from its top. The attachment hook bears the weight of the service cable. The cable then loops back out of the clamp and into the mains connection box. Inside the mains connection box, electricity passes from the wires of the service cable to the wires of the consumer mains. The mains connection box and the consumer mains were owned by Mrs Campbell. The mains connection box was located adjacent to the top of the PA pole and was supported in that position by the PVC conduit containing the consumer mains which conduit was secured to the PA pole. The image below is a photograph taken by Energy Safety on 12 January 2014 of the top of the PA pole as it was found during the initial site inspection.3

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1. After electricity left Western Power's service cable and entered Mrs Campbell's consumer mains cable at the junction of those two conductors in the mains connection box, it was conveyed by the consumer mains cable which ran, in a PVC conduit, down the side of the PA pole into the metal switchboard enclosure which was attached to the PA pole. Inside the switchboard enclosure was a meter panel to which was affixed three service protection devices or fuses belonging to Western Power and a meter belonging to Western Power. Also affixed to the switchboard were three submains fuses, a mains neutral link and the mains switch belonging to Mrs Campbell.

2. After passing from the consumer mains cable, through the meter, where it was measured, and then Western Power's fuses, electricity passed through Mrs Campbell's main switch and Mrs Campbell's submains fuses. Electricity was then conveyed by an insulated and sheathed electrical cable owned by Mrs Campbell and known as the submains cable. The submains cable exited the switchboard enclosure

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through a hole in the bottom of the enclosure and continued in a PVC conduit attached to the PA pole and then underground to a distribution board near Mrs Campbell's house on the Property. The image above is a photograph taken by Theiss line crew on 19 July 2013 of the PA Pole showing the sub mains cable exiting the main switchboard enclosure.[4]

Thiess

Thiess' business

[4] The photograph is exhibit 753.

1. Thiess carried on a business of, among other things, constructing and maintaining electricity distribution network installations and of constructing, maintaining and managing aspects of Western Power's distribution network.

Thiess contract with Western Power

1. Thiess provided those services to Western Power under the terms of a contract styled Services Umbrella Deed - Distribution Network Construction, Maintenance and Management Services RFP:T0789:SD-T0125-09 (Umbrella Deed), as varied and restated by a contract styled Deed of Amendment and Restatement Services Umbrella Deed - Distribution Network Construction, Maintenance and Management Services (RFP:T0789:SD-T0125-09) (Deed of Amendment and Restatement). Under the Umbrella Deed, Western Power issued Works Orders to Thiess to carry out the works specified in the Works Order and, if accepted by Thiess, constituted a new contract upon the standard terms of the Umbrella Deed.

2. The terms of the Umbrella Deed required Thiess to comply with Western Power's Work Practice Manual.

19 July 2013 works

1. Western Power issued a Works Order to Thiess to replace the termination pole at the corner of Granite and Johnson Roads. Those works were part of a broader series of works intended to be conducted during a power outage on 19 July 2013. Ten different line crews were tasked to replace about 24 network poles and associated connections during the hours of the outage.

2. The Works Order is dated 27 June 2013. After the Works Order was issued the Thiess supervisor, Clinton Duffy, visited the site on

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11 July 2013 as part of his scoping for the outage work scheduled for the following week. His tasks were to assess the types of replacement poles required to be delivered, the numbers of customer connections that might need disconnection, whether the customer connections themselves showed defects, traffic management and other logistical issues. Mr Duffy next attended the site on 18 July 2013, the day before the outage, to discuss the switching arrangements, that is arrangements to secure and isolate parts of the network, with the switching operator.

1. The actual works were undertaken on 19 July 2013. The Thiess line crew sent to Granite Road was led by Leonard Bartosch as leading hand. The crew arrived on site at around 8.00 am. Their task was to replace three poles during the outage: the termination pole, a pole across the road from the cross-arm pole adjacent to the termination pole and a third pole further uphill.

2. The job of replacing the termination pole required removing and replacing service cables including the service cable between the termination pole and the PA pole. Mr Duffy attended the site at about 10.00 am. The line crew detached the service cable from the mains connection box on the PA pole and from the attachment hook and lowered it to the ground. The line crew detached the other end of the cable from the termination pole. The line crew installed a new termination pole. The line crew shifted the aerial bundled cable between the cross-arm pole and the termination pole from the old termination pole to the new termination pole. They attached the new service cable to the wedge clamps on the new termination pole. They attached the new service cable to the new wedge clamp on the PA pole. The line crew tested the new connections. Mr Bartosch took some photographs of the completed works, completed a CUSA Activity form[5] and left the site. The below image is a diagram reproduced by the expert witnesses in their joint report which shows the relationship of the PA pole (described as the consumer pole) to the adjacent network poles.[6]

   [5] The CUSA Activity form is used by Thiess to record the customer service activity.

   [6] The diagram is a not to scale diagram which is figure 2 to the expert report of Nathan Spencer of 27 January

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10 January 2014 works

1. The plaintiffs initially made claims relating to works carried out by Thiess on 10 January 2014, two days before the PA pole fell. Those claims are no longer pursued but it is convenient to refer briefly to the works carried out. Thiess carried out works under a Works Order from Western Power. The works were to replace the cross-arm pole adjacent to the termination pole. Those works involved attaching and re-attaching cables from the cross-arm to the termination pole. No work was done to the PA pole on that day.

Mrs Campbell

1. Mrs Campbell is the owner of the Property. She has lived at the Property since approximately 1970, initially with her husband and children. Mrs Campbell's husband passed away in February 2011.

2. The PA pole was installed by Mrs Campbell's husband sometime between 1978 and 1985. The PA pole, and the land in which it is embedded, was owned by Mrs Campbell and her late husband until he passed away, and since then has been owned by Mrs Campbell.

Energy Safety

Status of Energy Safety

1. The Director of Energy Safety is a statutory position created by the Energy Coordination Act.[7] The Director has independent statutory powers subject only to direction by the relevant Minister. The Director is responsible for the technical and safety regulation of the electrical industry in Western Australia. The Director was administratively

   [7] Energy Coordination Act 1994 (WA) s 5.

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located within the Department of Commerce. The organisation unit is
known as Energy Safety, a division of the Department of Commerce.

1. By s 7 of the Energy Coordination Act, the functions of the Director are those vested in him by or under the Electricity Act, the Energy Coordination Act and any other written law.

Statutory provisions conferring any relevant function on Director

1. By s 33AA of the Electricity Act 1945 (WA), the Director may from time to time formulate and publish guidelines recommending safe practices to be adopted in electrical work under the Electricity Act.

2. By s 4 of the Energy Safety Act 2006 (WA), the Director of Energy Safety, must in each financial year prepare, and submit to the Minister for approval, a draft business plan in relation to energy safety activities. That business plan must include, amongst other things, a statement of intent.

3. By s 7 of the Energy Safety Act, the statement of intent must set out, in relation to energy safety, relevantly, a set of objectives and the nature and scope of activities to be undertaken by Energy Safety. Pursuant to s 12 of the Energy Safety Act, the draft business plan, once approved by the Minister, becomes Energy Safety's business plan for the relevant financial year.

4. By s 13 of the Energy Safety Act, the Director is required, unless otherwise authorised by the Minister, to perform his or her functions under the Energy Coordination Act in accordance with the statement of intent included in the business plan as existing from time to time.

5. In each of Energy Safety's approved business plans that issued from the financial year ending 30 June 2007, Energy Safety, in effect, expressed an intention to ensure the safety of people and property in respect of electricity infrastructure and said that it aimed to be proactive in making the public aware of the need to guard against unsafe electrical installations and infrastructure.

Private overhead powerlines brochure

1. In April 2012, Energy Safety requested that Western Power produce a brochure on customers' responsibilities concerning private overhead power lines. Western Power received internal and external legal advice that it should not advise anyone about their legal responsibilities concerning privately owned power lines and that it

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should not produce the brochure. Nevertheless, Western Power engaged in communications with Energy Safety about a brochure. Energy Safety produced a draft brochure.

1. In the course of further communications between Western Power and Energy Safety, Energy Safety claimed that Western Power was responsible for informing the public about their responsibilities for private overhead power lines. Energy Safety pointed to reg 253 of the Electricity Regulations 1947 (WA) which it said makes the network operator responsible for ensuring the safety of customer installations and requires the network operator to conduct inspections. Western Power received advice that reg 253 did not create an obligation on Western Power to provide information or education to the public concerning their responsibility to maintain private overhead lines. There was then further correspondence between Energy Safety and Western Power about the contents of the brochure produced by Energy Safety. Western Power agreed to distribute the brochure to properties likely to have a private overhead power line.

1. The brochure states, among other things:[8]

   [8] Exhibit 619.

   Some property owners use overhead power lines to transport electricity

   from their main electrical switchboard to their homes or sheds …

   If you have private power lines on your property, it is your responsibility to inspect and maintain them. You must also keep them in good condition and clear of trees and branches. This will prevent power interruptions, protect your home, avoid possible costly compensation liabilities and reduce the possibility of electrocution or bushfires.

   This is not a new requirement. It has always been the property owner's responsibility to maintain all electrical equipment they own which is beyond the network operator's meter (point of supply).

   What overhead power lines are we talking about?

   All poles, conductors and pole top fittings owned by the property owner after the network operator's meter are his/her responsibility.

   The brochure then contains a drawing showing various items including the network operator's power lines, mains switchboard/meter box and private power poles. The brochure then continues:

• Inspections of power lines and poles

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• It is important that you inspect your private power lines and poles at least once a year to check for any visible signs of deterioration.

The brochure goes on to make recommendations including that the property owner 'ask your white ant inspector to inspect and treat (if required) the area around your wood poles' and 'check for obvious defects such as poles which are cracked, damaged, rotting, attacked by

termites or leaning excessively …'

1. The plaintiffs say that the drawing depicts attachment poles as poles for which Western Power was responsible. Western Power disputes that interpretation of the drawing. In any event, it does not matter. The brochure was not delivered to, or received by, Mrs Campbell.

2. The plaintiffs say that Western Power failed to take reasonable care to ensure the brochure was sent to all landowners in the class for whose information it was prepared, including Mrs Campbell. Western Power's records identified Mrs Campbell as the long-term owner of 180 Granite Road. However, when preparing the mail out Western Power classed the property as Crown land and did not send the brochure to her.

3. The defendants say that if they are liable in damages to the plaintiffs, then the Director of Energy Safety is a concurrent wrongdoer for failing to notify Mrs Campbell of her responsibility to inspect and maintain the PA pole and damages should be apportioned to the Director as well as to the defendants. The Director is not a party to these proceedings.

Parkerville Bushfire 2014 Report

1. Energy Safety carried out an investigation into the cause of the bushfire in Parkerville and determined that the cause of the fire was the fallen PA pole that ignited ground vegetation. Energy Safety determined that the PA pole failed because of damage caused by termites and fungal decay (rot). The Energy Safety report was received in evidence and the determinations to which I have referred were common ground amongst the parties.

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D. NON-EXPERT EVIDENCE

Evidence adduced by Herridge plaintiffs

1. The Herridge plaintiffs adduced into evidence witness statements by Clinton Duffy, Gary Elwood, Sandra Elwood, Michael Lulich and Karl Cechner.

Mr Duffy

1. Clinton Duffy was an area supervisor with Thiess. On 11 July 2013, he attended the Granite Road site to carry out a scope on the work site on which Thiess was going to do work on 19 July 2013. On 18 July 2013, he again attended the area where he met with the switching operator and discussed the work site and the time required to perform the work.

2. On 19 July 2013, at about 6.45 am, Mr Duffy conducted a pre-start meeting at the Kewdale yard with the team leaders. He attended the site where team leader Leonard Bartosch was working, spoke to the crew and noticed that the wrong size poles had been delivered. He arranged for a couple of new poles to be dropped off.

Mrs Elwood

1. Mrs Elwood gave evidence of the losses she and her husband suffered as a result of the fire including loss of income.

Mr Elwood

1. Mr Elwood gave evidence of the losses he and his wife suffered as a result of the fire including loss of income.

Mr Lulich

1. Mr Lulich had lived in Mount Helena since 1979. His property was damaged in the Parkerville bushfire. His statement was received in evidence. He was not cross-examined by any party.

2. Mr Lulich is a cabinetmaker. He often visits client's properties in the course of his work. He maintained that jarrah is less often damaged than other woods but he has seen it damaged by termites. He often saw termite damage within the Perth hills area. For instance, he often saw damaged older gate posts which are commonly made of jarrah. There are wooden electricity poles on his property which are made of jarrah and were installed between 1978 and 1979. He recalls termite damage

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to a couple of the consumer poles. In the early 1990s one of the wooden poles on his property fell down as a result of rot. Mr Lulich engaged an electrician to replace the pole with a new steel pole.

Mr Cechner

1. Mr Cechner has lived on the property adjoining Mrs Campbell's property since December 1978. His evidence is that the PA pole was installed before he moved into the property in 1978. He was not cross-examined by any party.

Evidence adduced by IAG and Alliance plaintiffs

Stuart Campbell

1. Mr Campbell is the son of the third defendant, Mrs Campbell. He lived on the property between 1974 and 1985. The effect of his evidence is that the PA pole was installed by his late father sometime between 1980 and 1985.

Evidence adduced by Western Power

Mr Ogilvie

1. Mr Ogilvie is employed as the electrical systems inspection manager in the WA Electrical Inspectors business area owned and operated by Western Power. He gave evidence of inspection notification procedure prior to 2015, common faults with consumer poles, and his role in inspecting faults with wooden consumer poles.

Evidence adduced by Thiess

Mr Bartosch

1. Leonard Bartosch was a leading hand linesman employed by Thiess. He was the team leader of the Thiess line crew that carried out the work on 19 July 2013. He was responsible for inspecting the PA pole and ensuring that it was safe to work on.

2. Mr Bartosch gave his evidence-in-chief by a witness statement. Mr Bartosch says that he checked the PA pole.

3. Mr Bartosch gave a statement to Thiess on 14 January 2014, two days after the fire. He said that the line crew replaced the termination pole by installing a new pole next to the old pole. He said that they did a check on the consumer pole (the PA pole) - a sound check with a

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hammer and dug down to see if the pole (the PA pole) was good. He
said it was good, and they carried on with their work.

1. Mr Bartosch gave a more detailed statement to Energy Safety on 16 February 2014. This statement includes the following:

   I dug down around the consumer pole about 200 - 300 mm, I wiped the sand and dirt off the pole with my gloves. The pole looked good, I took a claw hammer and just knocked on the pole from where I dug down to about a metre. The pole sounded good to me and I also gave it a little push, it was all good. I did not notice any termite activity on the pole.

2. Mr Bartosch completed a witness statement of 12 December 2017 which was his evidence-in-chief at this trial. That statement is more detailed than his previous statements.

3. Mr Bartosch did his best to recall what he did and what happened on the morning of 19 July 2013. However, for the reasons I set out later in these reasons, I find he had no specific recollection of inspecting the PA pole.

4. Ultimately, Mr Bartosch's evidence about the pre-work inspection of the PA pole on 19 July 2013 was a reconstruction of what he believed he would have done based on his usual practice, rather than a specific recollection of what he did do.

Evidence adduced by Mrs Campbell

Mrs Campbell

1. Mrs Campbell had little recollection of the PA pole being installed. She does not remember seeing any signs of termite infestation or rot on the PA pole. She said she thought that because the PA pole was made of jarrah termites could not get into it.

2. Mrs Campbell said that before the fire her late husband used to arrange to have the house inspected for termites approximately every year. Mrs Campbell said that they had had trouble with termites in fruit trees on the property. She gave evidence that jarrah stumps under the house had been infested with termites and had to be replaced.

3. Mrs Campbell said she was never told by anyone that there were any risks with using wooden poles to support overhead power lines or that she should arrange an inspection of the PA pole on her property, or who should conduct such an inspection or how such an inspection should be conducted. She said that if she had been told that the PA

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pole needed to be looked after, that it would eventually have to be replaced, that looking after the PA pole was her responsibility, and that she should arrange inspections of it by some sort of expert, then she would have arranged those inspections or asked her husband or children to help her in arranging the inspections.

Documentary evidence

Electronic trial book

1. Documents adduced in evidence were submitted and viewed electronically in the electronic trial book. By the end of the trial about 1,200 documents had been adduced in evidence electronically.

Energy Safety bushfire report

1. Energy Safety conducted an investigation into the bushfire. Its report dated 2 December 2014 was received in evidence. There was some debate about the evidentiary status of the contents of the report. Energy Safety's investigation found that the PA pole failed below the ground line due to fungal decay and damage by termites and fell in a westerly direction. As the PA pole fell, the property owner's underground submains cable was pulled through the cable hole at the base of the main switchboard enclosure which exposed the conductor's single insulation to the sharp metallic edges of the hole, damaging the insulation. This caused a short circuit fault resulting in arcing. Hot molten metal globules from the conductors and the metal enclosure dropped to the ground, igniting the dry vegetation around the base of the PA pole. Those findings are accepted by all of the parties. I accept those findings.

2. The report refers to witnesses who provided relevant information on events leading up to and on the day of the bushfire. The report refers to statements by the members of the Thiess line crew. I have already referred to the statement of Mr Bartosch. The report also refers to a statement by 'linesmen one' which includes the statement: 'I saw that someone had dug around the consumer pole due to the ground being disturbed'. The report also refers to 'linesman apprentice' who

   said: 'I remember seeing … dig around the consumer pole'.

3. Neither the linesmen nor the linesman apprentice gave evidence. In the circumstances, I place little weight on their reported observations that someone dug around the base of the PA pole. Later in these reasons I set out my finding that, whilst Mr Bartosch may well have

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dug around the base of the PA pole, he did not do so to a depth or width that enabled him to carry out an adequate hammer test below the ground line.

E. EXPERT EVIDENCE

The conclaves

1. The expert witnesses were divided into four conclaves.

Conclave 1

1. Conclave 1 was concerned with issues relating to wood, rot and termites and the cause of the PA pole collapse.

2. The conclave consisted of:

• Geoffrey Boughton, an engineer engaged by the Herridge plaintiffs;

• James Creffield, an entomologist engaged by Thiess;

• Theo Evans, an entomologist engaged by the Herridge plaintiffs;

• Don Ewart, an entomologist engaged by Western Power;

• Robert Fairweather, an engineer engaged by Mrs Campbell;

• Henry Hawes, an engineer engaged by the IAG and Allianz plaintiffs;

• Martin Horwood, an entomologist engaged by IAG and Allianz plaintiffs;

• Terry Kershaw, an engineer engaged by Thiess;

• Colin MacKenzie, an engineer engaged by the IAG and Allianz and RAC plaintiffs;

• Michael Powell, a mycologist engaged by Thiess;

• Nathan Spencer, an engineer engaged by Western Power;

• John Thornton, a mycologist engaged by Thiess; and

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• Peter Vinden, a wood scientist engaged by the Herridge plaintiffs.

1. A conclave was convened of the conclave 1 experts to prepare agreed responses to questions set by the court. The conclave occurred in Melbourne from 1 to 4 February 2018 and was presided over by the Principal Registrar. Following the conclave, the participants produced a joint expert report which was filed on 13 March 2018 and referred to in the proceedings as JER1. The experts who participated in conclave 1 gave their evidence concurrently according to the trial protocol which was implemented by orders made prior to the trial. I broadly accept the majority opinions expressed by the experts in JER1.

Conclave 2

1. Conclave 2 was a conclave of experts to consider issues relating to industry and appropriate practices for the electricity distribution industry in Australia relating to inspections of wooden poles.

2. The conclave 2 participants who also participated in conclave 1

   were:

• Geoffrey Boughton;

• Robert Fairweather;

• Henry Hawes;

• Colin MacKenzie;

• Michael Powell; and

• Nathan Spencer;

1. The conclave 2 participants who did not participate in conclave 1

   were:

• Dennis Clarke, a material scientist with industry experience engaged by the Herridge plaintiffs;

• Phillip Clarke, a mechanical engineer engaged by the Herridge plaintiffs; and

• Terry Krieg, an electrical engineer engaged by Western Power.

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1. The conclave 2 experts participated in a conclave in Perth from 9 to 12 April 2018 presided over by the Principal Registrar. The conclave was convened to prepare agreed responses to questions set by the court. After the conclave the participants produced a joint expert report which is described in these proceedings as JER2. The experts who participated in conclave 2 also gave their evidence concurrently according to the trial protocol.

2. The conclave 2 experts considered industry practice and appropriate practice for the electricity distribution industry in Australia (including Western Australia) as to the procedures to be followed during and the timing of scheduled in-service asset inspections of wooden poles by an asset inspector in areas like the Perth hills area. Industry practices were assumed to apply to practices that were documented by Australian utilities in the period 1994 to January 2014. Appropriate practice was based on expert consideration of relevant technologies and practices that were available in the period and likely to have given the best inspection outcome.

3. The experts generally agreed that industry practice was for a pole inspection every three to six years after an initial period with minimal inspection. The inspection procedure involved risk assessment, pole identification, visual inspection, sounding, digging and drilling where required, assessment of pole residual strength, recording of defects and actioning repairs as required.

4. It is not necessary to consider industry or appropriate practice in relation to regular asset inspections any further because Western Power carried out no regular inspections of the PA pole. If Western Power owed a duty of care to the plaintiffs to carry out regular inspections of the PA pole Western Power breached that duty.

5. It is necessary to give more attention to industry and appropriate practice for a network operator and a contractor undertaking an inspection of a wooden pole at the time of or performing works like the July 2013 works carried out by Thiess. I will consider the experts' opinions in relation to that matter later in these reasons.

Conclaves 3 and 4

1. Conclave 3 was concerned with the valuation of property damage suffered by Mr and Mrs Elwood as a result of the fire.

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1. Stuart Forbes and Craig Butler were instructed by the Herridge plaintiffs to undertake an assessment of the Elwoods' losses. Graham Peters was jointly instructed by both Western Power and Thiess.

2. The experts participated in a conclave in Perth on 21 and 22 September 2017 presided over by the Principal Registrar. Again, the conclave was convened to prepare agreed responses to questions set by the court. After the conclave they produced a joint expert report referred to as JER3.

3. The experts reached agreement on the replacement value of the building and structures, and the value of the damaged contents, vehicles and garden. The experts identified a limited number of loss items that they were not able to assess. Through conferral the parties were able to resolve the outstanding matters and agreed that the court should accept the valuations expressed in JER3, together with the agreed value of a small number of additional items.

4. JER3 did not however address all of the loss claims brought by the Elwoods. JER3 did not address the claim for lost and damaged gardens and grounds, as Mr Peters had not been instructed to assess such losses. The defendants accept the losses and their quantification by Mr Butler, except for $31,000 claimed in respect of eucalyptus trees. I will consider the expert evidence of Mr Butler and the various arguments made in relation to the same later in these reasons. No viva voce evidence was required of the conclave 3 experts.

5. Conclave 4 concerned the impact on the market value of residential property in and around the suburbs of Parkerville, Stoneville and Mount Helena as a result of the fire. Mr William Gurry was instructed by the Herridge plaintiffs and Mr David Moore was instructed by Western Power and Theiss. As the Elwoods did not press a claim for fire blight, the recovery of such loss did not fall to be determined by this trial.

F. THE PA POLE

Ownership of the PA pole and things on and attached to it

1. The PA pole was installed on the Property by Mrs Campbell's late husband. The evidence of Mr Cechner is that the PA pole was installed before he moved into the adjoining property in December 1978. The evidence of Mrs Campbell's son, Stuart Campbell, is that the PA pole was installed sometime between 1980 and 1985. Having regard to that

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evidence and the expert evidence, I find that in July 2013 the PA pole
had been in the ground for at least 30 years and probably longer.

1. The PA pole was made of jarrah. It was about 5.5 m above the ground and was embedded 1.1 m in the ground. At the time of the fire in January 2014, it was about 21 cm in diameter at ground level and tapered to about 16 cm in diameter at the tip.

2. I have set out earlier in these reasons the apparatus and equipment that facilitated the passing of electricity from the conductor on the termination pole by the service cable to Mrs Campbell's property and ultimately her residence. Western Power owned the service cable, the wedge clamp, the meter, the meter panel and the service protection fuses. Mrs Campbell owned the PA pole, the connection bracket or metal hook at the top of the PA pole, the mains connection box, PVC conduit, consumer mains cable, switchboard enclosure, switchboard panel, mains switch, submains fuses and the submains cables.

Cause of the PA pole failure

1. The conclave 1 experts considered: what was the cause(s) of the failure of the PA pole on 12 January 2014? The experts who answered this question substantially agreed on the answer. I accept their agreed answer which is as follows: the PA pole lacked the structural capacity at the failure point below ground to resist the applied actions due primarily to bio-deterioration.

1. By s 9 of the Civil Liability Act, restrictions are imposed upon the ability of a court to award damages for non-pecuniary loss, which is relevantly defined in s 9(4) to include 'pain and suffering', 'loss of amenities of life', 'loss of enjoyment of life', and 'bodily or mental harm'.

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1. Harm is defined by s 3 of the Civil Liability Act to mean harm of any kind including personal injury. Personal injury is defined by s 3 to include impairment of a person's mental condition.

2. Materially similar definitions of 'non-economic loss' and injury' in the Wrongs Act 1958 (Vic) were analysed by J Forrest J in Thomas v Powercor Australia Ltd. His Honour concluded that 'a claim for damages that involves any component of mental distress, anxiety or stress is caught by the definition of injury and therefore pt VBA of the Wrongs Act applies'.

3. The losses claimed by the Elwoods for alleged mental distress as a result of the diminished privacy and attractiveness of their property due to a loss of vegetation likewise fall within the definition of non-pecuniary loss for the purposes of div 2 of pt 2 of the Civil Liability Act.

4. By s 9(1) of the Civil Liability Act, if the amount of non-pecuniary loss is assessed to be not more than 'Amount A' for the year in which the amount is assessed, no damages are to be awarded for non-pecuniary loss. By s 9(2), if the amount of non-pecuniary loss is assessed to be more than Amount A but not more than 'Amount C' for the year in which the amount is assessed, damages for non-pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over 'Amount A'. For the year commencing 1 July 2018, 'Amount A' is $21,500 and 'Amount C' is $63,500. Thus, if the court were to assess the Elwoods' respective claims for loss of amenity at $21,500 or less, s 9(1) would preclude any damages being awarded in respect of those claims. If, however, the court were to assess the Elwoods' respective claims between $21,500 and $63,500, by s 9(2) damages could only be awarded in the amount assessed less $21,500.

5. Thus, for example, if the court were to assess the Elwoods' respective claims at the full $25,000 claimed by each of them, the damages which could be awarded to each of them would be limited to $3,500 by s 9(2) of the Civil Liability Act.

6. Mrs Elwood's claim in respect of the inconvenience caused by the need to undertake additional cleaning due to the loss of vegetation and gardens might properly be categorised as a claim for purely physical inconvenience, which would not be restricted by div 2 of pt 2 of the Civil Liability Act. Such a claim ought still to be rejected on the basis that it amounts to double compensation in circumstances where the

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Elwoods have already claimed damages assessed by reference to the reasonable costs of reinstatement of their vegetation and gardens.

1. In any event, for Mrs Elwood's claim for inconvenience to be successful, she must establish a strong evidentiary foundation that the tortious act led to a genuine inconvenience of some significance in terms of impact or duration. On the limited evidence adduced by Mrs Elwood,[133] I am not satisfied that Mrs Elwood's inconvenience claim meets the required threshold of significance.

   [133] Witness statement of Mrs Elwood [96].

2. I will make no award to Mrs Elwood or Mr Elwood for loss of amenity and inconvenience.

Economic loss - Mr Elwood

1. Mr Elwood claims for business losses. He operated his own business, Eastern Hills Air Conditioning (EHAC) which installs and services air conditioners.

2. Mr Elwood gave evidence that on the days immediately after the fire he cancelled some installation jobs he had scheduled. Mr Elwood gave evidence of the disruption caused to his business by the fire as follows. In the weeks immediately after the fire he was focused on reorganising their lives. As a result of the work he did on the property his capacity to work was reduced between the months of January to August 2014. Immediately following the fire, he found that his concentration and ability to organise his work had diminished. He became very disorganised and distracted and could not think straight. This severely impacted his ability to work immediately after the fire. In the 2014 summer period after the fire he was only averaging two to four installations and working in the business two to three days a week. In that time of the year before the fire he would have worked five to six days a week. He did four installations in the first week of February 2014. He and Mrs Elwood went to Queensland for about 10 days in mid-February. It was not until 28 August 2014 when they moved into the shed that Mr Elwood was able to focus on running his business again. During the period in which he and Mrs Elwood were in temporary accommodation his focus had been on clearing the property and fitting out the shed. He was much more stable once they were back living at the property. He was able to get into a routine which meant he could direct more time and energy into his work.

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1. Mr Elwood produced profit and loss statements for his business for the financial year ending (FYE) 30 June 2012, FYE 2013, FYE 2014, FYE 2015 and FYE 2016. FYE 2012 and FYE 2013 showed net profits of $34,918 and $31,178 respectively. FYE 2014 showed a net loss of $53,656. Mr Elwood says that half of that loss should be attributed to the post fire period. He says that is a conservative estimate. Mr Elwood's profit and loss statements showed a net loss of $43,328 for FYE 2015 and a net profit of $10,523 for FYE 2016.

2. Mr Elwood claims lost income from his business for the 12 month period after the fire. His claim was formulated as follows:

   EHAC's net profit for FY13 was $31,178.54. Using the full year figures from the Post-fire P&Ls, the post-fire business loss for the 12-month period after the fire is estimated by deducting the sum of half of the FY14 net profit and half of the FY15 net profit, from the FY13 net profit (or adding to the FY13 net profit if the FY14 and FY15 are losses) as follows:

(a)	January to June 2014: -$53,656.40 ÷ 2 = -$26,828.20
(b)	June 2014 to December 2015: -$43,328.39 ÷ 2 = -$21,664.20

Total estimated business loss for the 12-month period post-fire is:

(c) $31,178.54 - (-$26,828.20 + -$21,664.20) = $79,670.94

1. Mr Elwood's tax returns were produced to him. There are significant and substantial differences between the profit and loss statements adduced by Mr Elwood in evidence and the profit and loss shown in his tax returns. Under cross-examination by senior counsel for Thiess, Mr Watson SC, Mr Elwood had no explanation for the discrepancies. He said that his wife prepared the statements, he did not know why there were differences and any mistakes were honest mistakes. Neither Mr Elwood nor Mrs Elwood has given any satisfactory explanation for the discrepancy between the figures in the profit and loss statements prepared by Mrs Elwood and the tax returns. I accept the tax returns as being the proper financial statements for Mr Elwood's business.

2. Senior counsel for the plaintiffs, Mr Armstrong QC, submitted that if the statements in the tax returns are accepted Mr Elwood's estimated business loss is as follows:

(a) January to June 2014: -$36,035 ÷ 2 = -$18,017.50

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(b) June 2014 to December 2014: -$36,348 ÷ 2 = -$18,174.00

Total estimated business loss using Tax Returns:

(c) $16,371 - (-$18,017.50 + -$18,174) = $52,562.50.

1. There are difficulties with that submission. First, it assumes that but for the fire Mr Elwood would have derived the same profit from his business in FYE 2014 as he had in FYE 2013. Sales fell $44,283 from FYE 2013 to FYE 2014. However, expenses increased from $183,313 to $191,986 including an increase in materials and supplies, air conditioners and other supplies. There is no explanation given for that apparent anomaly. Sales dropped again in FYE 2015. The decrease in sales from FYE 2013 to FYE 2015 is approximately $77,000 which is about 39%. In the same period expenses fell by about $25,000 which is about 13%. The expenses appear to be principally variable costs, not fixed costs. The biggest cost in each year is materials and supplies, including air conditioners, which make up more than half of total expenses in each year.

2. Secondly, Mr Elwood's principal explanation for the downturn in his business is twofold. First, immediately following the fire he found his concentration and ability to organise his work had diminished. Mr Elwood says it was not until after 28 August 2014, when he moved into the shed, that he was able to focus on running his business again. That is a period of seven months, not the period of almost 18 months for which he claims loss of income from his business. Furthermore, he does not claim that he suffered from any recognised illness or condition and there is no medical evidence to support that he was unable to attend to his business.

3. The second reason Mr Elwood gives for his business losses is that his capacity to work was reduced between the months of January to August 2014 because of the work he was doing on his property. In his personal labour claims Mr Elwood details 433 hours spent on work installing the interior of a shed, constructing the retaining wall, and clean up and salvage works. I have allowed Mr Elwood damages in respect of those items - under the heading personal labour claim for all items except the wall which is included in the building costs. I have allowed Mr Elwood $15,895 for personal labour. I have allowed Mr Elwood the cost of constructing the retaining wall. Mr Elwood said that the value of his labour in constructing the retaining wall was $7,920. Mr Elwood would be recovering twice for the same loss if he were awarded damages for his personal labour claim and loss of income

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from his business to the extent that they both represent time spent by
Mr Elwood on the works described in his personal labour claim.

1. I am satisfied that Mr Elwood suffered some loss of income because of the fire. His home was his place of business. There was necessarily some disruption to his business immediately after the fire. I must do the best I can to assess the loss properly suffered by Mr Elwood by way of loss of income from his business which does not replicate the damages awarded to him under the heading of personal labour claim and for constructing the retaining wall. In its written submissions, Thiess submitted that the court should not award more than $10,000 under this head. I consider that to be an underestimate of Mr Elwood's loss. I award $20,000 for Mr Elwood's economic loss.

Economic loss - Mrs Elwood

1. Mrs Elwood ran a bookkeeping business trading as Clockwork Bookkeeping Services. Her business involved general bookkeeping for small businesses and individuals in the area. Mrs Elwood produced profit and loss statements for her business. Under cross-examination by senior counsel for Thiess, Mr Watson SC, Mrs Elwood gave no satisfactory explanation for the substantial differences between those statements and her tax returns. I find the profit and loss statements produced by Mrs Elwood are unreliable. I accept her tax returns as proper financial statements of her business.

2. The first tax return filed by Mrs Elwood is for the FYE 2014. That year Mrs Elwood had a business income of $46,387 and expenses of $35,473 for a profit of $10,914. Mrs Elwood's tax return for FYE 2015 shows business income of $31,541 and expenses of $18,670 giving an income of $12,871. Mrs Elwood's 2016 return shows income of $33,404 and expenses of $16,019 for an income of $17,385.

3. Mrs Elwood says that at the time of the fire she had between 25 to 30 clients. She lost a couple of clients immediately after the fire as they also lived in the area and were affected by the fire. She was unable to service her remaining clients until about April 2014 as her computer and client files that contained her client information were destroyed in the fire. In around April 2014 she downloaded all of her business information onto a new laptop. During May and June 2014 she did not have the time to service her clients. She could not keep up with the level of work that they expected her to complete for them. She was organising the move into rental accommodation. She was still dealing

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with the emotional impact of the fire. She could not concentrate on the
work.

1. I accept that Mrs Elwood's capacity to earn income was affected by the fire and that affected her for some months after the fire. I place no reliance upon the profit and loss statements produced by Mrs Elwood because of the discrepancy between them and her tax returns, for which she offered no proper explanation. I am not satisfied that Mrs Elwood earned substantially more before the fire than she did in FYE 2016 when she made a net income of $17,385. Furthermore, Mrs Elwood is to receive damages for her personal or voluntary labour and to the extent that her time was spent on re-establishing the garden, replacing items and redesigning the dwelling, the Elwoods are compensated by the damages to be awarded for the buildings, chattels and garden. Nevertheless, I accept that Mrs Elwood suffered a loss in the months immediately after the fire because of the destruction of her laptop and business records and the initial disruption to her and her business. I will allow $10,000 for economic loss.

WANDRRA benefits

1. The Elwoods received assistance from the Western Australian Disaster Relief and Recovery Arrangements (WANDRRA). WANDRRA organised and paid for external contractors to undertake remedial services on the property. The works consisted of the removal of liquid water and the cleaning of the septic tanks. In addition, they also removed a number of trees and conducted ambient air monitoring and validation of soil sampling. The works were valued at $44,534.22. The Elwoods claim damages for that amount in respect of those works.

2. The plaintiffs submit that the applicable principles are to be found in what they describe as the Espagne line of cases,[134] that a defendant's liability to pay damages is not reduced by a third party's gratuitous amelioration of the plaintiff's position.

   [134] National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569, 573, 599 - 600;

3. The plaintiffs say that a characterisation exercise is required before one reaches the statements of principle. It is not apt to characterise the WANDRRA provision of services as precisely analogous to the payments referred to in the 'Espagne line of cases'.

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1. WANDRRA is jointly funded by the State and Commonwealth governments and administered by the Office of Emergency Management with assistance from other agencies. Through WANDRRA, the Western Australian and Commonwealth governments provide help to people who have suffered the direct impact of a proclaimed event or act. Assistance is provided by a range of relief measures to assist communities to recover from an eligible natural disaster event, including bushfire. Pursuant to s 3.2.1 of the Natural Disaster Relief and Recovery Arrangements Determination 2012 (Version 1) (2012 NDRRA Determination), a Category A measure is a form of emergency assistance that is given to individuals to alleviate their personal hardship or distress arising as a direct result of the natural disaster. Pursuant to s 3.2.2(d) and 3.2.2(e) of the 2012 NDRRA Determination, relevantly, Category A measures include demolition or rebuilding to restore housing to a habitable condition and removal of debris from residential properties to make them safe and habitable. Section 4.1 provides that NDRRA assistance provided by the State is not to supplant, or operate as a disincentive for, self-help by way of either access to capital or appropriate strategies of disaster mitigation and, as far as practicable, the State's assistance is to be designed to achieve an efficient allocation of resources.

2. In Wollington v State Electricity Commission of Victoria (No 2),[135] the Full Court of the Supreme Court of Victoria concluded that an ex gratia payment received from a State government emergency relief committee by the plaintiff, whose chattels had been damaged in a bushfire for which the SEC Victoria was tortiously responsible, was received by the plaintiff independently of any right of redress against others, such that he did not have to bring into account in reduction of damages payable by the SEC Victoria.

   [135] Wollington v State Electricity Commission of Victoria (No 2) [1980] VR 91.

3. In Powercor v Thomas the Victorian Court of Appeal applied Espagne, Wollington and the most recent restatement of the relevant principles in Zheng v Cai[136] to conclude that where an injured party has benefitted from the kindness of others not intended to relieve the wrongdoer of his or her obligation, then such benefit should be ignored in the assessment of damages. The court did not consider that there was any material distinction between the receipt by the plaintiff of benevolence in the form of money as opposed to benevolence in the form of voluntary labour.[137] The question is simply whether the benefit

   [136] Zheng v Cai (2009) 239 CLR 446.

   [137] Powercor Australia Ltd v Thomas (2012) 43 VR 220, 239 [81].

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received was conferred independently of any right of redress against the
tortfeasor.

1. The plaintiffs say that the issue should be resolved on the basis of the matters identified by Young CJ and Menhennitt J in Wollington,[138] which concerned the effect on a damages payment of payments made by a similar non-statutory Victorian State Emergency Relief Committee.

   [138] Wollington v State Electricity Commission of Victoria (No 2) [1980] VR 91.

2. I will set out those matters and their application to the circumstances of this case:

(a)	Whether the provision to the recipient was made after taking into account the recipient's capacity 'to rehabilitate himself from his own resources'. In the present case, public indications show that WANDRRA assistance is offered on as 'as needs basis', and by reference to the State's view of the proposed recipient's level of damage and likely ability to obtain commercial finance.
(b)	Whether the recipient had an entitlement to provision as of right. Recipients of WANDRRA assistance had no such right - such assistance as was provided to them was provided following individual applications considered on a discretionary basis.
(c)	Whether the provision was made by way of compensation. WANDRRA has specifically indicated that assistance it provides is not compensation.
(d)	The purpose of provision, which in Wollington was 'assistance to help people start up again'. There is a similar purpose in the WANDRRA scheme.
(e)	Whether the provision bore any actual relation to goods lost. Again, WANDRRA's assessment of 'significant damage' to 'assets' suggest a broad, categorical approach, as in Wollington.
(f)	Whether the recipient 'was free to use the money as he chose'. In the WANDRRA arrangements this criterion does not arise as the assistance provided to plaintiffs was not in the form of money.

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(g) Finally, the Full Court in Wollington considered whether there was any stipulation that the provision would have to be 'refunded if there were successful legal proceedings'. There is no such stipulation on the WANDRRA assistance.

1. Thiess submitted that no damages should be awarded reflecting work carried out by WANDRRA. Thiess says that to do so would offend the compensation principle because there has been no actual loss suffered by Mr and Mrs Elwood. I do not accept that argument. The loss suffered by Mr and Mrs Elwood is the damage to their property which required the work to be carried out by WANDRRA. WANDRRA invoiced the Shire of Mundaring for that work. That invoice reflects the value of the work. That in turn reflects the amount of damage suffered by Mr and Mrs Elwood.

1. Mr and Mrs Elwood are entitled to damages in an amount equal to the amount of the WANDRRA assistance.

Miscellaneous claims

1. The Elwoods make some further miscellaneous claims. The claims are described in the written closing submissions as follows. The Elwoods' insurer, SGIO made three payments. SGIO seeks to subrogate its right to claim through the Elwoods. The three payments are as follows. First, alternative accommodation payment made by the insurer to Elwoods - $26,000. Secondly, towing fees incurred by the Elwood's insurer for towing the destroyed Ford Fairlane and Ford Falcon vehicles from the property - $725.80. Thirdly, Integra Building Services loss assessor fee - $180.

2. Senior counsel for Thiess, Mr Watson SC, submitted that the Elwoods did not suffer a loss by receiving alternative accommodation payment of $26,000 from the insurer. The evidence offered in support of the Elwoods' loss is a bundle of documents described as Elwood SGIO Insurer File. It consists of seven pages with various items. Page 1 of the exhibit contains the line 'Pay: Elwood date 3/2/14 type 23 amount $26,000'. If that is evidence that the insurer paid $26,000 to Mr and Mrs Elwood, it is not evidence that Mr and Mrs Elwood suffered any loss by way of incurring a payment of $26,000 for alternative accommodation.

3. So far as the towing fees are concerned the same observation applies. There is no evidence that Mr and Mrs Elwood suffered any such loss.

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1. So far as the loss assessor's fees is concerned, if that fee was paid to a loss assessor it is not a loss suffered by Mr and Mrs Elwood.

Quantum of damages to be awarded to Mr and Mrs Elwood

I assess the damages payable to Mr and Mrs Elwood as follows:

Category of Loss Amount

A	Loss of (or damage to) structures	$415,351.00
B	Loss of (or damage to) contents	$188,523.00
C	Loss of Vehicles	$44,000.00
D	Loss of (or damage to) Garden/Grounds	$30,600.00
E	Personal and volunteer labour - Mr Elwood	$15,895.00
Mrs Elwood	$1,100.00
Volunteers	$4,730.00
F	Economic Loss
i) Mr Elwood	$20,000.00
ii) Mrs Elwood	$10,000.00
G	WANDRRA	$44,534.22

TOTAL $774, 733.22

Final orders

1. I will hear from the parties as to the appropriate orders to give effect to these reasons for judgment.

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I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MS

Associate to the Honourable Justice Le Miere

28 MARCH 2019

the bushfire which is exhibit 995.

Inspectors Business Area, which is owned and operated by Western Power.

2017 and is exhibit 118. The diagram is also part of exhibit 3017.



exhibit 349.

Company (1879) 11 Ch D 625.


Gordon JJ).




(2009) 75 NSWLR 649.



CLR 562; Brodie v Singleton Shire Council (2001) 206 CLR 512; Graham Barclay Oysters Pty Ltd v Ryan
(2002) 211 CLR 540 [99] (McHugh J) ; Tame v New South Wales (2002) 211 CLR 317 [249] (Hayne J).

Crennan & Bell JJ).

Bell JJ).


Stevedoring Industry Finance Committee (1999) 200 CLR 1 [100] (McHugh J).

v Ryan (2002) 211 CLR 540 [146] - [147] (Gummow & Hayne JJ); Stuart v Kirkland-Veenstra (2009) 237
CLR 215 [52], [75] (Gummow, Hayne & Heydon JJ); Crimmins v Stevedoring Industry Finance Committee
(1999) 200 CLR 1 [203] (Kirby J).

CLR 566, 583 - 584.

[156] (Hayne J), [188] - [190] (Callinan J), [193] (Crennan J).

(Hayne J).

ACTR 1 [352] - [353].

Management (2012) 42 WAR 287.

Management (2012) 42 WAR 287 [328] – [329].

Management (2012) 42 WAR 287 [336].

Orchard Holdings Pty Ltd v Paxhill Pty Ltd [2012] WASC 271 [343] (Allanson J).

[2012] VSCA 87.

Wollington v State Electricity Commission of Victoria (No 2) [1980] VR 91; Insurance Australia Ltd v
HIH Casualty & General Insurance Ltd (in liq) (2007) 18 VR 528; Zheng v Cai (2009) 239 CLR 446
[18] - [20].