09 December 2011

Settling Black Saturday

Reading Thomas v Powercor Australia Limited [2011] VSC 614, concerned with the Victorian Supreme Court's approval of the settlement of a group proceeding (aka class action) regarding the Black Saturday Horsham bushfire.

The Court states that -
On 7 February 2009, Black Saturday, a bushfire started near the intersection of the Horsham-Remlaw Road and Remlaw Station Road, some 7½ kilometres west of Horsham. Over about eight hours, the fire burnt approximately 2,500 hectares. It destroyed 13 homes and many farm buildings and other structures. There was widespread loss of crops, pastures, livestock, yards, fences, trees, smaller vegetation and farm and other equipment. The Horsham Golf Club clubhouse was destroyed and its grounds were razed.

Laurence Peter Thomas, the plaintiff, lives and farms a property with his wife at West Road, Drung. Some parts of his property were damaged or destroyed in the fire. Pursuant to Part 4A of the Supreme Court Act 1986, the plaintiff commenced a group proceeding, or class action, on behalf of all those who suffered loss of or damage to property as a result of the fire. The fire was caused by a live power conductor coming into contact with vegetation. The conductor, the line of which it was a part and the pole upon which the line was supported were all owned and maintained by Powercor Australia Limited, the defendant. The claim against the defendant was pleaded in negligence, nuisance and breach of statutory duty (s 75 of the Electricity Safety Act 1998).

On 5 September 2011, the trial of this proceeding commenced before J. Forrest J, sitting in Horsham. The trial proceeded for five weeks. At the close of the fifth week, terms of settlement were provisionally agreed between the parties and the trial was adjourned. At the time of the adjournment, the lay evidence had been completed but expert evidence, which was being given by nine witnesses concurrently, was continuing. It was estimated by the parties that the completion of that concurrent evidence and the closing addresses would require a further five to eight days of hearing.

Terms of settlement of the proceeding have now been executed by the plaintiff and the defendant. The essential terms of the settlement agreement provide for a settlement of 55% of each claimant’s losses assessed according to certain principles either agreed, or to be determined by the Court, plus penalty interest (from the date of issue of the proceeding) plus party-party costs. Section 33V of the Supreme Court Act provides that a group proceeding may not be settled without the approval of the Court. ... The settlement agreement deals comprehensively with, amongst other things, the amount of the settlement, the notification of claimants, claims assessment procedures, claims assessment principles, the payments of claims and mutual releases.