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Powercor Australia Ltd v Thomas

Powercor Australia Ltd v Thomas

Case [2012] VSCA 87 9 May 2012

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0196

POWERCOR AUSTRALIA LTD (ACN 064 651 109)	Appellant
	v
LAURENCE PETER THOMAS	Respondent

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JUDGES	WARREN CJ, BONGIORNO and OSBORN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 March 2012
DATE OF JUDGMENT	9 May 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 87
JUDGMENT APPEALED FROM	Thomas v Powercor Australia Limited [2011] VSC 586 (J Forrest J)

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DAMAGES – Measure of damage for damage to fixtures – Loss of fences arising out of bushfire – Whether damages recoverable where fixtures reinstated by plaintiff’s own labour or by labour of volunteers – Measure of damage the reasonable commercial cost of reinstatement or repair – Jones v Stroud District Council [1988] 1 All ER 5 – Burdis v Livsey [2003] QB 36 – Labour of volunteers was not intended to relieve the tortfeasor of liability – The National Insurance Company of New Zealand Limited v Espagne (1961) 105 CLR 569.

DAMAGES – Mitigation of loss – Applicability to claim for direct damage.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D E Curtain QC with Mr D McWilliams and Mr D J Wallis	Wotten + Keaney
For the Respondent	Mr J G Santamaria QC with Mr T P Tobin SC and Mr A J Fraatz	Maddens Lawyers

WARREN CJ:

I have had the benefit of reading in draft form the reasons for judgment of Osborn JA. I agree with his Honour, for the reasons that he gives, that the appeal should be dismissed.

BONGIORNO JA:

I also agree with Osborn JA.

OSBORN JA:

The respondent (‘Thomas’) is the owner of a farm at Drung, approximately six kilometres south-east of Horsham. On Black Saturday, 7 February 2009, his property suffered significant damage as a result of a fire.

The fire was caused by the fall of the assembly at the top of a power pole to the ground and the consequent arcing of electricity which ignited stubble in the surrounding paddock.

The fire burnt approximately 2,346 hectares. It destroyed 13 houses; two commercial premises; 31 sheds; 47 other outbuildings; 160 kilometres of fencing; 54 sheep; 226 other stock; and various pieces of machinery and equipment.

A group proceeding was brought under pt 4A of the Supreme Court Act 1986 against the appellant (‘Powercor’) on behalf of those whose property was damaged by the fire. The claim alleged breach of statutory duties and common law duties of care, and in the further alternative nuisance.

The matter proceeded to trial before J Forrest J at Horsham. On the 24^th day of the trial (7 October 2011), the question of Powercor’s liability to Thomas and other group members was resolved by agreement, subject to approval of the compromise pursuant to s 33V of the Supreme Court Act 1986. Beach J subsequently approved the compromise.

After resolution by agreement of the liability issues and some issues relating to quantum, 11 residual questions relevant to damages were formulated by the parties for the determination…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Powercor Australia Ltd v Thomas

Details

AGLC: Powercor Australia Ltd v Thomas [2012] VSCA 87
Case: [2012] VSCA 87
Decision Date: 9 May 2012

CaseChat Overview and Summary

In the case of Powercor Australia Ltd v Thomas, the plaintiff, Thomas, sought damages for the loss of fences arising from a bushfire which the plaintiff claimed was caused by Powercor’s negligence. The dispute was heard and determined in the County Court of Victoria. The primary issue before the court was whether damages were recoverable when the plaintiff had reinstated the fences using their own labour or the labour of volunteers, and if so, what the measure of such damages should be.

The court was required to decide whether the voluntary labour used to reinstate the fences could relieve Powercor of liability for damages. The court considered precedents, including Jones v Stroud District Council [1988] 1 All ER 5, Burdis v Livsey [2003] QB 36, and The National Insurance Company of New Zealand Limited v Espagne (1961) 105 CLR 569, to determine that the labour of volunteers was not intended to relieve the tortfeasor of liability. The court found that the measure of damages for the reinstatement of fixtures should be the reasonable commercial cost of reinstatement or repair, rather than the actual cost incurred by the plaintiff.

The court concluded that Powercor was liable for the damage caused by the bushfire, and the measure of damages should be the reasonable commercial cost of reinstatement or repair. The court held that the plaintiff was not relieved of the obligation to mitigate their loss by using their own labour or the labour of volunteers. The court determined that the plaintiff could recover damages for the reasonable cost of reinstatement, which was not reduced by the voluntary labour provided. The final orders of the court were that Powercor was liable to pay the plaintiff the reasonable commercial cost of reinstating the fences, together with interest and costs.

Orders