According to Asia Pacific Fire Magazine, Victorian Coroner ‘Ian Gray found that if power company AusNet Services had followed basic safety standards the [2009 Marysville] fire [where 40 people were killed] may have been prevented’.

But did the coroner really say that?  And did the coroner’s report really give ‘extraordinary details which have never before been aired in public’ (Steve Lillebuen ‘Coroner finds AusNet could have prevented Marysville’s devastating Black Saturday bushfireThe Age (Online), 4 December 2015).

The actual coroner’s report can be found on the website of the Victorian Coroners Court.  A Victorian coroner:

… investigating a fire must find, if possible—

(a) the cause and origin of the fire; and

(b) the circumstances in which the fire occurred.  (Coroners Act 2008 (Vic) s 68).

For the purpose of making those findings, a coroner ‘may hold an inquest’ (s 53(1); emphasis added).  An inquest is the sort of inquiry that gets reported in the news where witness are called and cross examined in open court.    A coroner can investigate a fire without holding an inquest.  A person may request that the coroner hold an inquest (53(2)).  Where a request has been received, the coroner must advise the person who made the request whether or not an inquest will be held (s 53(2)).    In deciding whether or not to hold an inquest:

… a coroner should liaise with other investigative authorities, official bodies or statutory officers—

(a) to avoid unnecessary duplication of inquiries and investigations; and

(b) to expedite the investigation of deaths and fires. (Coroners Act 2008 (Vic) s 7).

When concluding an investigation into a fire, a coroner may

… make recommendations to any Minister, public statutory authority or entity on any matter connected with a death or fire which the coroner has investigated, including recommendations relating to public health and safety or the administration of justice. (s 72).

In this case the coroner was ‘investigating’ the fire.  He had to determine the matters set out in s 68 and also deal with a request for an inquest.   In rejecting an application for an inquest the Coroner noted that this fire had already been the subject of an extensive police investigation and had been the subject of civil litigation that had settled without any admission of liability.  The coroner made no recommendations to prevent a future fire or to promote public health or safety.

The police investigation, after initially suspecting arson (‘Firefighter Ron Philpott denies arson claims’ News.com.au, 6 May 2009; Margaret Rees ‘Australian firefighter cleared of arson charges in 2009 Victorian bushfireWorld Socialist Web Site, 2 August 2011; Michael Bachelard and Cameron Houston ‘Police ignored Black Saturday evidenceThe Age (Online) 3 July 2011):

… concluded that the cause of the Murrindindi fire was a failed conductor between poles 5 (11525) and 6 (11526) on a section of the Murrindindi power line, which contacted and electrified a boundary fence that then ignited vegetation under the boundary fence’ (Finding Without Inquest into Murrindindi Fire [71]).

Because of the ongoing police investigation and to avoid prejudicing any possible criminal trial, the cause of the Murrindindi fire was not investigated by the 2009 Victorian Bushfires Royal Commission (Finding Without Inquest into Murrindindi Fire [30]).

Civil proceedings against SP AusNet and others settled for $300 million (see ‘Marysville/Murrindindi ‘Black Saturday’ settlement approved (May 29, 2015)).  In that case it was admitted that a power line had ‘failed as a result of arcing between the conductor and a stay wire supporting the relevant pole, the conductor broke and fell, draping itself over a fence abutting the roadside reserve; and the conductor was live and this caused at least one strand in the fence to become electrified’ [75].  Even so AusNet did not admit that this was the cause of the fire.  They argued (at [77]):

… that the fire started away from the fence, and that it was not caused by the electrification of the fence. Among other things, it contended that the arcing between the conductor and the stay wire most likely occurred after the fire had started (as a result of smoke in the air) and that the electric current in the fence would not have been sufficiently strong to ignite a fire.

The result of the coroner’s investigation was a finding (at [90]) that:

  1. the Murrindindi fire occurred between 7 February and 5 March 2009; and
  2. the origin and cause of the Murrindindi fire was a failed conductor between poles 5 (11525) and 6 (11526) on a section of the Murrindindi power line, which contacted and electrified a boundary fence that then ignited vegetation under the boundary fence line along the west side of Wilhelmina Falls Road, Murrindindi.

That is the coroner accepted the findings of the police investigation.

Discussion

The Coroner’s finding that it was the failure of the power line that caused the fire, and not the fire that caused the power line to fail, is a clear attribution of causation that is contrary to the argument put by AusNet in the civil litigation.  In that sense it is ‘the first time, power company AusNet Services has been held directly responsible in court for causing the 2009 bushfire’ (Steve Lillebuen ‘Coroner finds AusNet could have prevented Marysville’s devastating Black Saturday bushfireThe Age (Online), 4 December 2015).

We are told that the fire ‘could have been prevented if a power company had followed basic safety standards, according to an explosive coronial finding’ (Lillebuen) and that the Coroner ‘found that if power company AusNet Services had followed basic safety standards the fire may have been prevented’ (Neil Bibby, ‘Coroner finds AusNet Services could have prevented one of the 2009 Australian firesAsia Pacific Fire Magazine, 10 December 2015).

Actually the coroner didn’t say any of those things.   The coroner did report on the police investigation and quoted from evidence that had been obtained by police including expert’s reports that the power line was too close to the ‘stay’ that was holding up the power pole and that the way the pole was wired ‘does not meet required standards both at the time of measuring (2011) and on 7 February 2009’ ([51]).    A report delivered to the police did say (at [55]):

The risk of fallen conductors is foreseeable and proper application of known technical knowledge and existing procedures should have prevented the failure on the Murrindindi feeder and the subsequent damage that resulted.

In that case the coroner was not yet reporting on anything not previously known.  This was not the coroner’s findings and he did not explicitly adopt the report.

What the State Coroner was able to do, that the police were not, was call upon AustNet to produce various documents and reports (Coroners Act 2008 (Vic) s 42).   The Coroner said (at [56]):

Despite investigators knowing that, following the 7 February 2009 fire, certain augmentation and re-alignment and repairs works were carried out on the electrical hardware at pole 6 and having obtained signed statements from Mr Mitchell and Mr Sullivan, who undertook the repair work, to that effect, AusNet were unable to locate or supply any records relating to these works.

The coroner did not find that AusNet ‘kept no records of repair work completed on the faulty power line’ (Lillebuen), only that they were unable to now locate those records.

So what?

Not much turns on all of this; the things that the reporters say the coroner said can be implied.  They were not said by the Coroner but in reports to the police.  The coroner did not formally adopt or endorse them but he did reach the same conclusion as the police so the endorsement may be inferred.  It is of course a less dramatic headline to say ‘Experts say that the Black Saturday bushfire that destroyed Marysville could have been prevented if a power company had followed basic safety standards – and Coroner reproduces parts of their report in finding’.  The reporting is, as reporting often is, much more dramatic than reality.  The Coroner did not find that the fire could have been prevented, he did not find that there had been any criminal or negligent conduct as that is not the role of the coroner. A Victorian coroner is specifically prohibited from making a finding that any person is guilty of an offence (s 69).   Finding that one party had been ‘negligent’ is not explicitly ruled out in the Act, but in any event the Coroner did not make such a finding.

Further, the coroner’s findings are not ‘binding’.  As noted the civil action against AustNet has already settled and cannot be reopened.  If there was someone who was not part of that class action and they now wanted to sue AusNet they could not rely on the coroner’s findings as proof of causation.  A coroner’s court is not bound by the rules of evidence (s 62); the findings are not admissible in subsequent proceedings (Evidence Act 2008 (Vic) s 91).  Further, AusNet have not resiled from their position that the power line did not cause the fire – ‘”We don’t agree with the [Coroner’s] findings as they were determined without a hearing and the evidence upon which they are based was untested,” a company spokesman said’ (Lillebuen). It follows that if there were further litigation over this fire, the issue of causation could again be revisited, just as it was in other litigation despite the extensive investigation by the 2009 Victorian Bushfires Royal Commission (see ‘Settlement in Black Saturday litigation is approved’ (December 23, 2014); ‘More from the Black Saturday litigation’ (September 6, 2011)).

So what’s the point?  The coroner’s findings have endorsed the conclusion of the police, the community is now better informed and investigators of future fires will be aware how this fire was caused.  This may help some to understand what happened and it may relieve people such as the unfortunate Mr Philpott being subject to the trauma of 2 ½ years of investigation as a suspected arsonist.  The details of the investigation are now quite public and all of that is for the good.   Despite that, and despite nearly 7 years, a Royal Commission, a number of civil cases, extensive police investigation and now this inquiry there is no legally binding determination of what caused the fire.

‘Michael Gunter, an energy industry commentator who had asked for an inquest into bushfires and power line safety’ may believe that ‘the coroner’s finding is a concerning development’ but he may be disappointed.  ‘”I strongly feel that someone should be held accountable for what happened,” he said’ (Lillebuen) but this finding will not hold anyone ‘accountable’.   There was no particular criticism of the individual workers who responded when the power first went out and who for reasons explored and accepted by the coroner ([56]-[61]) failed to see that the conductor had fallen before they re-energised the line.  Lillebuen reports that ‘Energy Safe Victoria said it had insufficient evidence to prove to the required criminal standard that AusNet had breached its general duties on Black Saturday’ so there is unlikely to be any criminal prosecution of AusNet.  AustNet has paid out $260.9 million damages (‘Marysville/Murrindindi ‘Black Saturday’ settlement approved’ (May 29, 2015)). Is that accountability or are ‘Bushfires; the price we pay for electricity(May 20, 2014)?