A correspondent who is a land surveyor:
… has a very big interest in both land law and emergency service law. I was just reading this (https://au.news.yahoo.com/thewest/wa/a/31696560/woman-83-sued-over-parkerville-bushfire/?cmp=st (Amanda Banks, ‘Woman, 83, sued over Parkerville bushfire’ The West Australian (Online) 26 May 2016). I’m not sure on WA land laws but I am assuming that there was an easement on this property? How is it possible to sue the servient tenement for this? Have you heard of this before? I’d love to find out more about this case, do you know where I can find out more information?
The gist of the story is that there is legal action over the Parkerville bushfire where, it is reported, 183 residents are suing for the loss of homes that were destroyed or damaged in the fire. The article says
They are suing Western Power as owner of the allegedly defective pole where they claim the blaze started… The residents allege Western Power had a duty to maintain the pole in a safe condition.
They claim Thiess Services owed a duty of care under its contract for maintaining and inspecting the pole.
The amended writ also claims further and alternatively that Ms Campbell, as owner-occupier of the property on Granite Road, owed the plaintiffs a duty to take care to make sure the pole was in a safe and fit condition.
My correspondent refers to an ‘easement’ which is a right to use land for a particular purpose, in this case one would infer to run the power line across the land. The ‘servient tenement’ is a fancy way of saying the owner of the land that was subject to the easement. The fact that the new defendant is 83 is of course irrelevant but it makes the story more dramatic.
So how can this happen? The answer is I can sue anyone simply by going to the court house and completing the relevant form and paying the relevant fee. The Registrar isn’t there to review my claim and decide whether or not it is legally tenable, that is the role, ultimately, of the judge. So the relevant plaintiffs can sue her simply by naming her on the claim. Equally the other defendants could have joined her as a defendant.
We don’t know if the defendant holds a ‘servient tenement’, may be Western Power say they don’t have an easement and it wasn’t their pole, but hers. We don’t know what the defence has been but if that is the case, the parties may have wanted to join this defendant in case that was indeed the case.
Why would they do that? Academics and High Court judges may like to think tort law is all about principle and apportioning liability where it should fall. Others would realise it’s all about trying to find defendants with money. Further defendants with money (insurance companies) try to find other defendants to share the losses. Remember that the primary obligation of the board of an insurance company is to earn an income for their shareholders, not to waste money on issues of principle. So Western Power and Thiess are being sued and they claim they are not liable; a prudent plaintiff joins the land owner just in case it turns out Western Power and Thiess are correct.
So what that she’s 83. She owns a property that is worth something and more importantly, and I’m sure no doubt, she has an insurance policy and it is that insurer who the plaintiffs and other defendants want to bring into the action. It’s nothing personal.
Now if she wins, and if she wins because the pole really did belong to Western Power and she was just the owner of the ‘servient tenement’ and if that’s decided by a Court of Appeal or the High Court, then lawyers and academics will say ‘you can’t sue the servient tenement’ but we don’t mean ‘you can’t name someone on the writ’, we mean ‘you can’t win if you do’. It’s like saying to someone ‘you can’t swim the English channel but you can try if you want to’. It’s not that “can’t” means ‘not allowed to’ it means ‘you won’t actually succeed’. Of course most people can’t swim the English channel, but some can and equally one might say ‘you can’t [successfully] sue’ but the right facts and the right lawyer, and the right judge in the right circumstances may well mean that there is success and perhaps a change in the law and sometimes just a sufficient difference from the ‘norm’ that the outcome is different.
It’s really important to distinguish the allegation from the outcome. Starting court proceedings is simply to make an allegation. The plaintiffs here are alleging negligence by various parties. They can do that but it doesn’t mean the claims are well founded. Where can one find out more about the allegations? At this stage the only place would be to approach the lawyers, who no doubt would not be willing to discuss it, or seek access to the files in the Supreme Court which are also unlikely to be given out to someone who happens to be interested. If the matter goes to court, and if a judge makes a ruling on it, the judgment will be publically available, but this is clearly early days yet and there is much to go through before the matter ever gets near a judge.
Like most litigation in these circumstances this will turn out to be a fight between insurance companies. These 183 plaintiffs are not actually suing, their insurer, IAG, has paid out and now stands in the shoes of the insured. They are not suing ‘on behalf’ of the insured, they are suing ‘as’ the insured and their aim is to get back money they have paid – see ‘Leading insurer IAG launches second bushfire lawsuit‘ (Insurance Business (Online) 30 May 2016). This story says (emphasis added):
IAG has launched a second law suit over the Parkville bushfire which devastated parts of Western Australia in January 2014.
The insurer us suing Western Power, its contractor Thiess Services and the elderly land owner from the ignition point of the blaze, Noreen Merle Campbell on behalf of 183 customers, PerthNow reports.
Thiess and Western Power and, no doubt, the new defendant will not really be the defendants, the defendants will be their insurers. It’s all about shifting the money. Having a headline ’83-year-old woman gets sued’ sounds dramatic, but doesn’t begin to tell anything relevant about the story, and assuming facts (such as that there was an easement) also doesn’t help. We’ll have to wait for the matter to be resolved to learn anything and of course, if it settles (as most cases do) there will never be any public exposition of what happened.