In late 2011, the first of five class actions arising from the
2009 Black Saturday Bushfires settled. The claim arose from a fire
in Horsham which started after a live conductor became detached
from a power pole top and ignited dry vegetation below. The fire
burnt over 2000 hectares and destroyed 13 homes.
A class action was commenced by Mr Thomas against Powercor, the
electricity company responsible for the distribution and
maintenance of the line. After several weeks of evidence before
Justice Forrest, in the Victorian Supreme Court, the parties
settled the case on the basis that Powercor pay 55% of each group
member's claim, plus interest and legal costs. A number of
'assessing principles' were agreed between the parties,
however several issues required Justice Forrest's ruling. One
of those issues was whether group members are entitled to recover
damages for their own labour and that of volunteers for work to
repair/reinstate damaged property.
The dispute arose in relation to the cost of labour for work
carried out by Mr Thomas to reinstate fencing and stockyards
following the fire, and by volunteers who assisted him. He agued
that there was evidence before the Court to establish the
reasonable cost of repairs to those items and it was not necessary
for the Court to examine how those repairs were carried out or by
Powercor argued that Mr Thomas was not entitled to compensation
for his own efforts, or for those of other volunteers, unless he
could establish that carrying out such work caused him some
financial loss, for example, an inability to perform other work
while performing the repairs.
Justice Forrest helpfully set out a number of basic principles
which, as he said, 'bear repeating'. He re-iterated that
'the plaintiff is entitled to be put back, so far as money can
do it, into the same position as if the damage had not
occurred'. He also noted that benefits received from third
parties (such as volunteers) will not be taken into account to
reduce a defendant's liability 'unless those benefits were
intended to relieve the defendant of liability to compensate the
Justice Forrest noted that if Powercor's argument was
accepted, a plaintiff who carried the work out himself would
'be precluded from damages unless he could show a direct
financial loss in the sense of loss of earnings.' That, he
said, would lead to unfairness and inflexibility because, on the
other hand, a plaintiff who could afford to pay to have repairs
carried out would be entitled to compensation, as would an insurer
bringing a subrogated claim.
For those reasons, Justice Forrest rejected Powercor's
argument and held that Mr Thomas was entitled to recover the
reasonable commercial cost of repairs to the fences and
Thomas v Powercor Australia Ltd  VSC
Powercor has appealed Justice Forrest's decision on this
point. The outcome of that appeal will have wide-reaching effects,
not only for the Horsham group members and the remaining Black
Saturday bushfire class actions, but for recovery claims more
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guide to the subject matter. Specialist advice should be sought
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