ALQ December 2022 Significant High Court decisions

Issue: December 2022

Significant High Court decision

When does a statutory authority owe a duty of care at common law?

Access the decision: Electricity Networks Corporation v Herridge Parties [2022] HCA 37

Electricity Networks Corporation (t/as Western Power) is a WA statutory authority. The fourth respondent, Mrs Campbell, had on her property a jarrah pole to which Western Power had attached electrical cable and other apparatus. In January 2014, the pole fell, causing electrical arcing and igniting dry vegetation near the pole. The resulting bushfire caused widespread loss and damage. The pole had been installed by Mrs Campbell’s late husband and had been standing since at least 1983. It fell because it had rotted and been damaged by termites.

Various affected parties commenced proceedings against Western Power (among others). The trial judge found that Western Power owed the plaintiffs a “pre-work inspection duty of care” — ie, that, before undertaking works on the pole on Mrs Campbell’s property and when undertaking those works, Western Power had a duty to ascertain whether the pole was in a safe and fit condition for use in the supply of electricity and, if it was not, not to use the pole. The trial judge found, however, that Western Power had not breached that duty: it had discharged its duty by engaging a contractor to carry out the relevant works. 

On appeal, the WA Court of Appeal found that Western Power owed a broader duty, namely, a duty to persons in the vicinity of its electricity distribution system to take reasonable care to avoid or minimise the risk of injury to those persons, and loss or damage to their property, from the ignition and spread of fire in connection with the delivery of electricity through its electricity distribution system. The Court found that Western Power had breached that duty. Though it took a wider view of the scope of the duty than the trial judge, the Court agreed that it was not a non-delegable duty.

On appeal to the High Court, Western Power contended that the Court of Appeal had erred in holding that Western Power was under a duty requiring it to have a system for inspecting poles owned by consumers.

The High Court unanimously dismissed Western Power’s appeal. The applicable principles boil down to two propositions: (i) that “there is no freestanding common law rule which fixes whether and when a common law duty of care upon a statutory authority might, or might not, arise”; and (ii) that “the starting point for the analysis of any such duty is the terms, scope, and purposes of the applicable statutory framework”. In light of those propositions, the approach which should be taken is to (i) identify the functions of the statutory authority, and (ii) identify the statutory powers which the statutory authority did in fact exercise in the performance of those functions, as well as those powers which it could have exercised but did not. 

Western Power had a duty to take reasonable care to avoid or minimise the risk of injury to persons within the vicinity of its electricity distribution system, and loss or damage to their property, from the ignition and spread of fire in connection with the delivery of electricity through its electricity distribution system. Western Power bore that duty because it had, through the exercise of statutory powers, in accordance with its statutory functions, “enter[ed] into the field or step[ped] into the arena”. Its exercise of its powers “created a relationship between it and all other persons within the vicinity of its electricity distribution system”, a “critical feature” of which was that “Western Power exercised those powers in a manner which created or increased the risk of harm to those persons – persons it had the power to protect”. The pole on Mrs Campbell’s property “only posed the risk that it did because Western Power had attached its live electrical apparatus to it”.

This case is now likely to be the leading authority on when a statutory authority owes a duty of care at common law.

 

Other decisions in this issue

• Constitutional Law

• GIPA
  

• Privacy

• Significant Supreme Court decisions
• Merits Review