Matthews v SPI Electricity 4788/2009

Transcription

1 Matthews v SPI Electricity 4788/2009 UAM's Amended Defence to the Plaintiff's Amended Statement of Claim 10 December 2012 FILED BY: ACN PTY LTD (FORMERLY "UTILITY SERVICES CORPORATION LTD") Dated of document: 10 December 2012 Filed on behalf of: The Second Defendant Prepared by: Holman Fenwick Willan Level 41 Bourke Place 600 Bourke Street MELBOURNE VIC 3000 Solicitors Code: DX: 310 Tel: Fax: Ref: RHPJ/ELW/59452/1 Contact: Elizabeth Wroe

2 TO THE plaintiff's fifth seventh amended statement of claim dated 1 June 30 November 2012 (statement of claim), the second defendant / UAM plaintiff by counterclaim (UAM counterclaim) says: SECTION A: PRELIMINARY 1. It admits paragraph It admits paragraph 2. 2A Defined terms in UAM's defence to the counterclaim of the first defendant / plaintiff by counterclaim have the same meaning in the remainder of this defence and in the UAM counterclaim. 3. As to paragraph 3: It admits that at approximately 11.45am on 7 February 2009 a fire started near Saunders Road in Kilmore East in the State of Victoria (Kilmore fire); It otherwise does not admit to paragraph It does not admit paragraph As to paragraph 5: For the purposes only of responding to the allegation that the requirements of section 33C(1) of the Supreme Court Act 1986 (Vic) are satisfied, it admits that at the date of commencement of this proceeding there were seven or more persons who are asserting claims against it. It otherwise denies paragraph 5. SECTION B: SPI STATUTORY DUTY AND NEGLIGENCE 6. It does not plead to paragraph 6 as it makes no allegation of material fact against it. 7. It does not plead to paragraph 7 as it makes no allegation of material fact against it. 8. It does not plead to paragraph 8 as it makes no allegation of material fact against it. 9. It does not plead to paragraph 9 as it makes no allegation of material fact against it. 10. It does not plead to paragraph 10 as it makes no allegation of material fact against it. 11. It does not plead to paragraph 11 as it makes no allegation of material fact against it. 12. It does not plead to paragraph 12 as it makes no allegation of material fact against it. 13. It does not plead to paragraph 13 as it makes no allegation of material fact against it. 14. It does not plead to paragraph 14 as it makes no allegation of material fact against it. 15. As to paragraph 15:

3 Save to the extent that any persons may have had control over forces, circumstances, events or occurrences external to the assets and component parts of the Pentadeen Spur and which were capable of having an impact upon or damaging the Pentadeen Spur so as to cause a discharge of electricity, it admits paragraph 15(i); (d) It denies paragraph 15(ii); It does not plead to paragraph 15(iii) as it makes no allegation of material fact against it; It says further that having regard to paragraph 14 of the statement of claim, the definition of "fire area" in paragraph 14(d) of the statement of claim and the definition of "affected areas" in paragraph 14(e) of the statement of claim, the class of persons described in paragraph 15 of the statement of claim was an indeterminate class of persons. 16. Save that it says that having regard to paragraph 14 of the statement of claim, the definition of "fire area" in paragraph 14(d) of the statement of claim and the definition of "affected areas" in paragraph 14(e) of the statement of claim, the alleged class described in paragraph 15 of the statement of claim was an indeterminate class of persons, it does not admit paragraph As to paragraph 17: Insofar as any allegation is made against UAM, it says that: (i) at all material times UAM exercised reasonable care and skill in the provision of services pursuant to the UAM Contract; and (ii) any duty of care owed by SP AusNet to the claimants was a non-delegable duty of care to ensure that reasonable care was taken by any independent agents or contractors engaged by it; It otherwise does not plead to paragraph 17 as it makes no allegation of material fact against it. 18. As to paragraph 18: It admits that at approximately 11.45am on 7 February 2009 the Kilmore fire started near Saunders Road in Kilmore East in the State of Victoria; It otherwise denies paragraph Insofar as any allegation is made against UAM, it is denied. It otherwise does not plead to paragraph 19 as it makes no allegation of material fact against it

4 19A It does not plead to paragraph 19A as it makes no allegation of material fact against it. SECTION C: SPI PRIVATE NUISANCE 20. Save that it does not admit that the plaintiff or any other person suffered injury or death, loss of or damage to property or economic loss in connection with interference in their use and enjoyment of interests in land as a consequence of any fire which ignited on 7 February 2009 near Saunders Road at Kilmore East, it does not plead to paragraph 20 as it makes no allegation of material fact against it. 21. It does not plead to paragraph 21 as it makes no allegation of material fact against it. 22. Save that it refers to and repeats paragraph 18 above, it does not plead to paragraph 22 as it makes no allegation of material fact against it. 23. It does not admit paragraph It does not plead to paragraph 24 as it makes no allegation of material fact against it. 24A 24O It does not plead to paragraphs 24A to 24O as they make no allegation of material fact against it. SECTION D: LOSS AND DAMAGE CLAIMS AGAINST SPI 25. It does not plead to paragraph 25 as it makes no allegation of material fact against it. 26. There is no paragraph There is no paragraph 27. SECTION E: CLAIMS AGAINST UAM 28. As to paragraph 28, it refers to and repeats paragraphs 29 to 53D below. UAM alleged common law duty to the claimants 29. It admits paragraph It admits paragraph 30 but says further that pursuant to the UAM Contract, UAM carried out such Contract Works: As were required from time to time by the first defendant (SP AusNet); and In accordance with the terms and conditions of the UAM Contract. 31. As to paragraph 31: It denies the allegations in paragraph 31, and says that:

5 (i) pursuant to the UAM Contract, SP AusNet engaged UAM to undertake ground level activities including pole inspection and line hardware inspection (Asset Inspection Services); (ii) Asset Inspection Services were carried out by UAM in accordance with Works Orders; (iii) each Works Order related to a pole in respect of which UAM was to provide Asset Inspection Services; (iv) Works Orders were generated by the SP AusNet Q4 computer system from information contained in a works spreadsheet issued by SP AusNet to UAM, specifying the poles in relation to which UAM was to provide Asset Inspection Services within the period covered by the spreadsheet (SP AusNet Works Spreadsheet). (A) (B) (C) (D) SP AusNet Works Spreadsheets were generated by the SP AusNet Q4 System. They were issued by SP AusNet to UAM annually and updated by SP AusNet on an ongoing basis. Each SP AusNet Works Spreadsheet further specified the window of time within the period covered by the Works Spreadsheet during which the Asset Inspection Services were to be performed by UAM. From the information contained in the SP AusNet Works Spreadsheet, UAM created a works package (Works Package) comprising a number of poles in relation to which Asset Inspection Services were to be carried out within the window of time specified by SP AusNet in the SP AusNet Works Spreadsheet. (v) pursuant to the UAM Contract, UAM, from time to time when engaged by SP AusNet, provided aerial activities including aerial inspection and pole-top inspection (Aerial Inspection Services) which were carried out: (A) at the instruction of SP AusNet;

6 (B) in relation to poles in respect of which there was a reported defective and / or deteriorated cross-arm; and / or (C) to ascertain sound wood measurements and / or the presence of termite damage at heights inaccessible to normal asset inspection; and (D) in North and East areas, only in relation to poles in areas that were easily accessible to an Elevating Work Platform (EWP). "Aerial Inspections", Schedule 2, UAM Contract (vi) at all material times, UAM was not required by SP AusNet to perform aerial inspections of the Valley Span; At all material times: (A) SP AusNet did not instruct UAM to perform any aerial inspections of the Valley Span; (B) there were no cross-arms on the Valley Span; and (C) the Valley Span was in an area which was not area easily accessible to an EWP. Save that it says that pursuant to the UAM Contract, UAM reported on maintenance items to SP AusNet and carried out minor maintenance tasks as required by SP AusNet, it denies the allegations in paragraph 31. It admits that it employed and trained persons to conduct asset inspections. It otherwise denies paragraph 31. (d) It admits that at least bi-monthly internal auditing of asset inspectors and at least annual independent auditing of asset inspectors and internal auditors were required under the UAM Contract, it otherwise denies paragraph 31(d). (e) It admits that monthly reporting to SP AusNet was required under the UAM Contract. It otherwise denies paragraph 31(e). 32. Save that UAM refers to the full terms and conditions of the UAM Contract as to their meaning and effect, it admits paragraph

7 33. Save that UAM refers to the full terms and conditions of the UAM Contract as to their meaning and effect, it admits paragraph Save that UAM refers to the full terms and conditions of the UAM Contract as to their meaning and effect, it admits paragraphs 34,, (d), and (e). It otherwise denies paragraph 34 and says further that there were the following Special Conditions in the UAM Contract: Minimum training requirements for asset inspection activities; It was the responsibility of UAM to ensure that all personnel engaged under the Agreement completed the appropriate recognised training courses and were skilled and competent to perform the requested tasks; UAM may need to supply additional training in order to comply with government guidelines and regulations for the tasks being undertaken. 35. Save that Schedule 2 to the UAM Contract contained the matters referred to in paragraphs 35, 35, 35(i) and (ii), 35(d), 35(e), 35(i), 35(j), 35(k), 35(l), 35(m), and 35(n), it otherwise denies paragraph 35 and refers to and repeats paragraphs 30 and 31 above. 36. It admits paragraph Save that it admits that it was an implied term of the UAM Contract that UAM would exercise reasonable care and skill in the provision of services pursuant to the UAM Contract, it otherwise denies paragraph Save that it admits that UAM held itself out to SP AusNet to be fully experienced, competent and qualified with respect to carrying out the Contract Works, it otherwise denies paragraph Save that throughout the term of the UAM Contract, UAM provided to SP AusNet Asset Inspection Services under the UAM Contract throughout the distribution network including in respect of the Pentadeen Spur and the Valley Span, it otherwise denies paragraph 39. UAM refers to and repeats paragraph 31 above. 40. As to paragraph 40: It denies paragraph 40 and says that at all material times SP AusNet had responsibility for and control over:

8 (i) The distribution network, including the Pentadeen Spur and the Valley Span, including asset inspection throughout the distribution network; (ii) UAM refers to and repeats paragraph 12 of the plaintiff's statement of claim. Determining the scope and timing of the Contract Works to be provided by UAM under the UAM Contract and the manner in which the services were to be provided; UAM refers to and repeats paragraph 30 and 31 above. (iii) Setting requirements for asset inspection to be provided by UAM under the UAM Contract; and (A) (B) (C) (D) (E) the asset inspection requirements were contained in an SP AusNet asset inspection manual; new versions of the SP AusNet asset inspection manual were issued by SP AusNet to UAM from time to time; each version of the SP AusNet asset inspection manual was updated by SP AusNet from time to time; the asset inspection requirements applicable from the date of the UAM Contract to in or about August 2007 were those contained in the SP AusNet asset inspection manual dated March 2006 and numbered ESV-4111 (as updated by SP AusNet from time to time) (2006 Asset Inspection Manual); and the asset inspection requirements applicable from in or about August 2007 were contained in the Asset Inspection Manual (as updated by SP AusNet from time to time). (iv) Setting minimum requirements for asset inspection training under the UAM Contract; Requirements for asset inspection training were detailed in the Asset Inspection Manual and the UAM Contract. Further and in the alternative it says that:

9 (i) At all material times UAM exercised reasonable care and skill in the provision of services pursuant to the UAM Contract; and (ii) Any duty of care owed by SP AusNet to the claimants was a non-delegable duty of care to ensure that reasonable care was taken by any independent agents or contractors engaged by it. 41. To the extent that it admits the terms of the UAM Contract above, paragraph 41 is admitted. It otherwise denies paragraph It objects to paragraph 42 on the basis that it is vague, oppressive and cannot be pleaded to. Under cover of that objection, it denies paragraph It objects to paragraph 43 on the basis that it is vague, oppressive and cannot be pleaded to. Under cover of that objection, it denies paragraph As to paragraph 44: It admits paragraph 44. It denies paragraph 44. It denies paragraph 44 to (g) and says further that: (i) the risk of a fire ignition as the result of a conductor break on the Valley Span of the Pentadeen Spur was unforeseeable. It refers to and repeats paragraphs 14(i) to (v) of SP AusNet s defence to the plaintiff s claim; (ii) (iii) the risks materialising was unforeseeable to UAM; at all material times, SP AusNet had responsibility for and control over the 45. As to paragraph 45: Pentadeen Spur. It refers to and repeats paragraph 40 and 40(ii) above. Save to the extent that any persons may have had control over forces, circumstances, events or occurrences external to the assets and component parts of the Pentadeen Spur and which were capable of having an impact upon or damaging the Pentadeen Spur so as to cause a discharge of electricity, it admits paragraph 45. It denies paragraph 45. It denies paragraph 45 and says that if any dependency existed (which is denied), the dependency was upon SP AusNet meeting the duties owed by it as set out in paragraphs

10 and 17 of the plaintiff's statement of claim and/or upon the DSE Secretary, the CFA and/or the State Co-ordinator, the Deputy Co-ordinator, the SER personnel and the Kilmore Fire Emergency Response Co-ordinators meeting the duties owed by them as alleged in paragraphs 55 to 101, 113 to 135 and 176 to 213 of the plaintiff's statement of claim and SP AusNet s defence and counterclaim. It refers to and repeats paragraph 40 above. (d) It otherwise refers to and repeats paragraph 15(d) above. 46. As to paragraph 46: It denies that it owed the UAM Duty or any duty of care to the claimants and says further that: (i) having regard to paragraph 14 of the plaintiff's statement of claim, the definition of "fire area" in paragraph 14(d) of the statement of claim and the definition of "affected areas" in paragraph 14(e) of the statement of claim, the class of persons to whom it is alleged UAM owed a duty of care was indeterminate; (ii) further and in the alternative, it denies that it owed the UAM Duty or any other duty of care: (A) (B) to a class of persons of such magnitude; and / or to avoid acts and omissions which could cause loss and damage so remote, that the potential class of persons or potential loss and damage would be out of all proportion to the seriousness of the act or omission or the extent of the want of care, if any, which resulted in the act or omission; (iii) further and in the alternative, it denies that it owed the UAM Duty or any other duty of care to any persons who were not vulnerable to the risk of property damage or economic loss including those persons who by reason of measures which ought to have been taken by SP AusNet, the CFA, the DSE Secretary, and/or the State Co-ordinator, the Deputy Co-ordinator, the SER personnel and the Kilmore Fire Emergency Response Co-ordinators in accordance with the duties owed by SP AusNet, the DSE Secretary, the CFA and/or the State Co-ordinator, the Deputy Co-ordinator, the SER personnel and the Kilmore Fire Emergency Response Co-ordinators as set out in the plaintiff's statement of claim or in SP AusNet s

11 defence and counterclaim would not otherwise have suffered personal injury loss or damage, property damage or economic loss; (iv) it denies that it owed the UAM Duty or any other duty of care to persons who were too physically remote from the Pentadeen Spur for it to be reasonably foreseeable that they may be subjected to the risks; and (v) the claimants and the real and personal property in which they had an interest were located too remotely from the Pentadeen Spur such that they fall within the class of persons referred to in the sub-paragraph (iv), to whom UAM did not owe a duty of care. Further and alternatively, if it did owe a duty of care to the claimants (which is denied), it says that: (i) the duty of care was to exercise reasonable care and skill in the provision of services pursuant to the UAM Contract; (ii) any duty of care which it owed to the claimants (which is denied) did not extend to taking precautions against a risk of harm unless: (A) (B) (C) the risk was foreseeable; the risk was not insignificant; and in the circumstances a reasonable person in UAM's position would have taken those precautions. (iii) it denies that: UAM relies upon section 48(1) of the Wrongs Act 1958 (Vic) (Wrongs Act). (A) the risk of harm alleged to have been suffered by the claimants was foreseeable; It refers to and repeats paragraph 44. (B) the risk of harm, alleged to have been suffered by the claimants was not insignificant;

12 It refers to and repeats paragraph 44. (C) in the circumstances a reasonable person in UAM's position would have taken those precautions, and says further that in the circumstances, the precautions a reasonable person in UAM's position would have taken were to exercise reasonable care and skill in providing services under the UAM Contract. 47. It denies paragraph 47 and refers to and repeats paragraph 46 above. Alleged breach of duty by UAM 48. It denies paragraph 48 and refers to and repeats paragraph 46 and says further that: It carried out the February 2008 asset inspection in accordance with the UAM Contract; It complied with all obligations under the UAM Contract in the provision of services and in respect of the February 2008 asset inspection; It exercised reasonable care and skill in carrying out the February 2008 asset inspection and in the provision of services pursuant to the UAM Contract generally and in respect of the February 2008 asset inspection; (d) (e) No reportable matters were observed during the February 2008 asset inspection; If there were any reportable matters, they were not capable of being observed during the February 2008 asset inspection; (f) Further and in the alternative, no faulty, defective, deteriorated in condition or incorrectly assembled assets such that they were at risk of failure and ought be replaced before the next scheduled asset inspection or at all were observed during the February 2008 asset inspection; (g) Further and in the alternative, if there were any faulty, defective, deteriorated in condition or incorrectly assembled assets such that they were at risk of failure and ought be replaced before the next scheduled asset inspection, they were not capable of being observed during the February 2008 asset inspection;

13 (h) Further and in the alternative, during the course of carrying out Asset Inspection Services, UAM noted and reported on matters which did not have priority reporting codes but which formed part of the asset inspection checklist (additional reportable matters); and Part 12-1 of the Asset Inspection Manual. (i) UAM notified SP AusNet of the following additional reportable matters in respect of the February 2008 asset inspection: (i) there was additional equipment (being four grey disc insulators) on pole 39 which was not previously recorded in SP AusNet's records; and (ii) there was a second brown disc insulator on pole 38. The asset inspector who conducted the February 2008 asset inspection noted additional reportable matters on a portable data entry (PDE) worksheet. A copy of the PDE worksheet with the handwritten notes is available for inspection by appointment. 49. It denies paragraph 49 and refers to and repeats paragraph 48 above. 50. It denies paragraph 50 and refers to and repeats paragraph 48 above. Further and in the alternative, it says that if the Kilmore fire was associated with a break in the conductor on the Valley Span (which is denied), then it was not caused by a breach of the UAM Duty or any duty which UAM may have owed to the claimants (which duties are denied). Further and in the alternative, it says that: The weather conditions on 7 February 2009; (d) The conductor breaking on a high fire danger day; A fire being ignited as the result of the conductor breaking (which is denied); A fire, if ignited as the result of the conductor breaking (which is denied), not being extinguished or adequately controlled or suppressed by relevant fire fighting agencies; (e) (f) The speed and/or extent of the spread of the resulting fire; The destruction caused by the resulting fire, were acts of God or alternatively were inevitable events and/or accidents

14 UAM Alleged Loss and Damage 51. It denies paragraph 51 and refers to and repeats paragraph 46, 48 and 50 above. 52. It denies paragraph 52 and refers to and repeats paragraph 50 above. 53. It denies paragraph 53. Apportionability and apportionment 53A As to paragraph 53A: Save that it refers to the full terms and conditions of the UAM Contract as to their meaning and effect, it does not plead to paragraph 53A as it makes no allegation of material fact against it; Save that it refers to and repeats paragraph 40 above, it does not plead to paragraph 53A as it makes no allegation of material fact against it; Save that it refers to and repeats paragraph 40 above, it does not plead to paragraph 53A as it makes no allegation of material fact against it; (d) Save that it refers to and repeats paragraph 40 above, it does not plead to paragraph 53A(d) as it makes no allegation of material fact against it; (e) Save that it refers to and repeats paragraph 40 above, it does not plead to paragraph 53A(e) as it makes no allegation of material fact against it; (f) Save that it refers to and repeats paragraphs 53A to (d) above, it does not plead to paragraph 53A(f) as it makes no allegation of material fact against it. 53B It does not plead to paragraph 53B as it makes no allegation of material fact against it. 53C As to paragraph 53C: Save that it refers to and repeats paragraphs 17 and 40 above, it does not plead to paragraph 53C as it makes no allegation of material fact against it; Save that: (i) it denies that there was any failure by UAM to take reasonable care comprising UAM's breaches (which breaches are denied) of the UAM duty (which duty is denied) or at all; and (ii) it refers to and repeats paragraphs 30 to 53 above,

15 it does not plead to paragraph 53C as it otherwise makes no allegation of material fact against it; Save that: (i) it denies that the claimants' loss and damage resulted from any breaches by UAM (which breaches are denied) of the UAM duty (which duty is denied) or any duty of care which UAM may have owed to the claimants (which duty is denied); and (ii) it refers to and repeats paragraphs 30 to 53 above, it does not plead to paragraph 53C as it otherwise makes no allegation of material fact against it. 53D As to paragraph 53D: Save that it refers to and repeats paragraphs 53A, 53B and 53C above, it does not plead to paragraph 53D as it makes no allegation of material fact against it; Insofar as paragraph 53D makes allegations against UAM, it denies paragraph 53D and refers to and repeats paragraphs 30 to 53 above. It says further that UAM has no responsibility for the claimants' economic loss and property damage the subject of the ELPD reasonable care claims as alleged or at all. It otherwise does not plead to paragraph 53D as it otherwise makes no allegation of material fact against it; and It denies paragraph 53D and refers to and repeats paragraphs 30 to 53 above. It says further that UAM has no responsibility for the claimants' economic loss and property damage the subject of the ELPD reasonable care claims as alleged or at all. 54E It does not plead to paragraphs 54E and 54 to 109 as they make no allegation of material fact against it. 54. As to paragraph 109A, it says: It does not plead to paragraph 109A as it makes no allegation of material fact against it; Insofar as any allegation is made against UAM, it denies paragraph 109A and refers to and repeats paragraphs 29 to 53D above. It otherwise does not plead to paragraph 109A as it makes no allegation of material fact against it. 55. It does not plead to paragraphs 109B to 144 as they make no allegation of material fact against it. 56. As to paragraph 145, it says:

16 It does not plead to paragraph 145 as it makes no allegation of material fact against it; Insofar as any allegation is made against UAM, it denies paragraph 145 and refers to and repeats paragraphs 29 to 53D above. It otherwise does not plead to paragraph 145 as it makes no allegation of material fact against it. 57. It does not plead to paragraphs 146 to 295 as they make no allegation of material fact against it. SECTION F: CONCURRENT WRONGDOING CLAIMS WRONGS ACT 1958 (VIC) PART IVAA 58. Further and in the alternative to paragraphs 53D and 53D and in answer to the whole of the claimants' ELPD reasonable care claims, UAM says that: The ELPD reasonable care claims are claims for economic loss and/or damage to property made in an action for damages arising from alleged failures by UAM to take reasonable care (which failures are denied); The ELPD reasonable care claims are apportionable claims within the meaning of sections 24AE and 24AF(1) of the Wrongs Act to which Part IVAA of the Wrongs Act applies; If UAM is liable to the claimants in respect of the claimants' economic loss and property damage the subject of the ELPD reasonable care claims (which is denied): (i) UAM's liability is limited to the amount reflecting that proportion of liability which the court considers just having regard to the extent of the UAM's responsibility (if any) for such liability; and (ii) the following parties are concurrent wrongdoers in relation to the ELPD reasonable care claims within the meaning of section 24AH(1) of the Wrongs Act: (A) (B) (C) SP AusNet; the Secretary to the Department of Sustainability and Environment (DSE Secretary); the Country Fire Authority (the CFA). 59. Defined terms in the plaintiff's statement of claim have the same meaning in the remainder of this defence and in the UAM counterclaim. SECTION F1: SP AUSNET 60. Further and in the alternative to paragraphs 29 to 53D, by reason of Part IVAA of the Wrongs Act, UAM says as against the first defendant (SP AusNet) as follows

17 61. SP AusNet is and was at all material times: A corporation registered for the purposes of the Corporations Act 2001 (Cth) and capable of being sued; Carried on the electricity supply business; In carrying on the electricity supply business was: (i) (ii) An electricity supplier; and A network operator within the meaning of section 3 of the ES Act; (d) Is and was the successor to the electricity supply business carried on by: (i) SECV until December 1993; Electricity Industry Act 1993 (Vic) sections 62 and 64 Electricity Industry (Residual Provisions) Act 1993 (Vic) s63a, 63C and s64 Electricity Industry Act 1993 Allocation Statement Section 62(1) dated 23 December 1993 (ii) ESV from December 1993 until September 1994; Electricity Industry (Residual Provisions) Act 1993 (Vic) Part 10 Electricity Industry Act 1993 Section 117 Allocation Statement dated 29 September 1994 and acquired all liabilities, duties and obligations, whether actual, contingent or prospective of SECV and ESV in accordance with the legislative scheme pursuant to the Electricity Industry Act 1993 (Vic) (Legislative Scheme). (e) Was: (i) (ii) (iii) incorporated in or around May 1994 with the corporate name "DB One Limited"; known from in or around August 1994 until in or around March 2000 as "Eastern Energy Limited"; known as "TXU Electricity Limited" from in or around March 2000 and as "TXU Electricity Pty Limited" in or around August 2004; (iv) known as "SPI Electricity Pty Limited" from in or around August (f) While network operator, was required to comply with an ESMS approved by ESV;

18 (g) Was required by its ESMS to undertake programs of cyclic scheduled inspections to identify required maintenance works (ESMS cl ). 62. In the course of and for the purpose of the electricity supply business, SP AusNet at all material times from in or around 1994: Owned, further or alternatively had the use and management of, the poles, pole fittings, conductors, fuses, circuit reclosers, transformers and like installations (together and severally installations) comprising a single-wire earth return electricity supply line known as the Pentadeen Spur SWER line at Kilmore East in the State of Victoria, including the conductor strung between the Valley Span; and Transmitted electricity along the SWER line for the purposes of supply to consumers. The ESMS was submitted by TXU to ESV pursuant to Division 2 of Part 10 of the ES Act in or about November Further particulars may be provided following the completion of discovery and interrogation. SP AusNet Duties of care SP AusNet Statutory Duty 63. At all material times section 75 of the ES Act required SP AusNet as a network operator to take reasonable care to ensure that all parts of its network were safe and were operated safely (SP AusNet Statutory Duty). 64. The SP AusNet Statutory Duty imposed on SP AusNet non-delegable obligations for the protection of a particular class of persons, being persons who from time to time, by themselves or their property: Approached or came into contact with any part of SP AusNet s network; or Might be injured or damaged by a discharge of electricity from any part of the said network or by the consequences of any such discharge, including but not limited to fire. The object of protecting the said class is to be inferred from the ES Act as a matter of the proper construction of the Act. 65. At all material times the claimants were:

19 Persons within the class described in the preceding paragraph; or Estates or dependents of persons within the class described in the preceding paragraph; or Persons likely to suffer mental injury, psychiatric injury or nervous shock as a result of the death of or injury to persons within the class described in the preceding paragraph. Insofar as UAM is able to say prior to discovery, the plaintiff, her husband and her two adult children, including Sam Matthews, resided in an area susceptible to bushfire ignited by a discharge of electricity from the SP AusNet network, being Mullers Road at St Andrews. 66. In the premises, at all material times SP AusNet owed the SP AusNet Statutory Duty to the claimants. SP AusNet General Duty 67. At all material times SP AusNet from in or around 1994: (aa) Was the owner and/or operator of the SWER line; Was the successor to the electricity supply business as set out in paragraphs 61(d) and 61(e) above; Had the ultimate responsibility for: (i) (ii) the creation and / or existence from in or around 1994 of any faulty, defective, deteriorated in condition or incorrectly assembled assets forming part of the distribution network, including the Pentadeen Spur; all activities associated with planning, design, construction and maintenance of electrical network assets that it: acquired, and/or owned; and/or operated; Page 8 of the ESMS. UAM refers to and repeats the particulars set out in paragraphs 61(d) and 61(e). Had the right, to the exclusion of other private persons to: (i) (ii) construct, repair, modify, inspect and operate the SWER line; or give directions as to its construction, repair, modification, inspection or operation; (d) (e) Exercised the right referred to in above; and In the premises, had practical control over the SWER line

20 68. At all material times from in or around 1994: SP AusNet used the SWER line to transmit electricity at high voltage; The transmission of electricity along the SWER line created a risk of unintended discharges of electricity from the SWER line; Unintended discharges of electricity from the SWER line were capable of causing death or serious injury to persons, and damage to or loss of property, by: (i) (ii) (iii) electric shock; burning by electric current; further or alternatively burning by fire ignited by the discharge of electricity; (d) In the premises set out in sub-paragraphs to inclusive, the transmission by SP AusNet of electricity along the SWER line was a dangerous activity; (e) SP AusNet knew or, as the network operator of the SWER line, ought reasonably to have known of the matters referred to in sub-paragraphs to (d) above. 69. At all material times it was reasonably foreseeable to SP AusNet that: A break or defect in, or damage to the conductor on the SWER line could cause or allow an unintended discharge of electricity from the SWER line; A discharge of electricity from the SWER line could cause a fire in the vicinity of the point of discharge; (d) Such fire could spread over a wide geographic area; Such fire could cause death or injury to persons and loss of or damage to property within the fire area, and consequential losses including economic losses; (e) Such fire could cause damage to property and consequential losses including economic losses within the affected areas; (f) Such fire or its consequences could: (i) disrupt or impair the income-earning activities of persons residing or carrying on business in the fire area or affected areas; or (ii) (iii) impede the use or amenity of property located in the fire area or affected areas; or reduce the value of property or businesses located in the fire area or affected areas;

21 and thereby cause economic loss to those persons, or the owners of those properties or businesses; (g) The risks (risks) referred to in sub-paragraphs to (f) above were greater during periods of high or extreme bushfire risk. 70. At all material times, the claimants: Had no ability or no practical or effective ability, to prevent or minimise the risks; or Were vulnerable to the impact of the risks; and consequently Were to a material degree dependent for the protection of their persons and property, upon SP AusNet ensuring the SWER line was operated safely in the operating conditions applying to it from time to time. 71. In the premises set out in paragraphs 63 to 70 inclusive, alternatively paragraphs 63 and paragraphs 67 to 70 inclusive, at all material times from in or around 1994 SP AusNet owed to the claimants a non delegable duty: To take reasonable care by its officers, servants and agents; and To ensure that reasonable care was taken by any contractors engaged by it, to ensure that all parts of the SWER line were safe and operated safely in the operating conditions that were foreseeable for the SWER line (SP AusNet General Duties). Causation 72. If the Kilmore fire was associated with a break in the conductor on the Valley Span (which is denied), then the Kilmore fire was caused by breaches by SP AusNet of: The SP AusNet Statutory Duty; further or alternatively The SP AusNet General Duties. of Breach Asset management system failures (ia) failing to conduct adequate due diligence to ensure that the SWER installations were free from any faulty, defective, deteriorated in condition or incorrectly assembled assets either at the time it acquired the electricity supply distribution business or at all; (i) failing to have or implement adequate systems for determining risk factors affecting the likelihood of failures of SWER installations and in particular conductors; (ii) failing to keep adequate records to identify SWER installations operating in conditions presenting increased risk of damage and failure;

22 (iia) failing to consider and take into account the condition of the Valley Span by failing to consider and take into account the history of maintenance and inspection of the SWER installations on the Valley Span for the purpose of informing the content and frequency of inspections and maintenance; (iib) failing to keep adequate and accessible records so that it could consider and take into account the condition of the Valley Span in setting the content and frequency inspections and maintenance; (iii) failing to take reasonable steps to identify the Valley Span as a span subject to increased risk of installation damage and failure, being risks arising from inter alia: a. its length of approximately 1043 metres, being one of the 16 longest spans on the SPI SWER network; b. its time in service, being approximately 43 years; c. its anticipated service life of at least 40 years; d. its unknown tension; e. its location, being strung between two hills or ridges; f. its location in terrain defined by ENA C as Type II terrain g. its likely exposure to high wind; h. its likely exposure to high-frequency low-amplitude vibration induced by wind, associated with its location; i. its small diameter, being the smallest diameter conductor available; j. if there was an incorrect configuration of the helical termination assembly holding the conductor in place within the Pole 39 pole top assembly and that incorrect configuration was causative of the Kilmore Fire (which is denied), the incorrect configuration of the helical termination assembly holding the conductor in place within the Pole 39 pole top assembly, being the misplacement of the helical wrap outside the groove of the thimble and its jamming between the outside edge of the thimble and the inside edge of the clevis; kj. the absence of vibration dampers; (iiia) failing to provide adequate instructions and / or information to its agents and / or contractors: a. in relation to the existence of, or the risk of the existence of, any faulty, defective, deteriorated in condition or incorrectly assembled assets on or forming part of the Valley Span; and / or b. for the purposes of identifying any faulty, defective, deteriorated in condition or incorrectly assembled assets on or forming part of the Valley Span, either at the time it acquired the electricity supply distribution business or at all

23 (iv) failing to have any or any adequate program for scheduling replacement of SWER conductors on a precautionary ("scheduled discard") basis according to an adequate assessment of the reliability of the conductor having regard to risk factors affecting the conductor; (v) having or purporting to have a system of replacing conductors according to inspections of their condition during scheduled inspections, in circumstances where, should the content and frequency of inspections be found to be inadequate (which is not admitted), the content and frequency of scheduled inspections was inadequate, as referred to in particulars (vii) to (viii) below; (vi) failing to replace the Valley Span conductor prior to February 2009; Asset inspection system failures If there were any of the following failures (which failures are not admitted): (vii) failing to have adequate systems for setting the content or frequency of scheduled inspections of the Valley Span, and in particular failing to set the content or frequency of inspections by reference to: adequate records identifying risk factors affecting the Valley Span; or the fact that the Valley Span was located in a High Bushfire Risk Area (as designated pursuant to section 80 of the ES Act); (viii) setting the content and frequency of scheduled inspections of installations on the Valley Span by reference to failure modes of poles and not by reference to any or any adequate data regarding the failure modes of conductors located on spans like the Valley Span; (ix) (x) (xi) (xii) failing to conduct adequate inspections of the Valley Span, and in particular failing to require the inspection of the conductor using inspection techniques suitable for the detection of damage to SWER conductors such as (without limitation) inspection by trained line repair personnel carried out from an elevated work platform located close to the conductor ("line-height inspections"), or inspections using thermal imaging equipment stick-mounted cameras; failing to schedule inspections at appropriate intervals; failing to have an adequate system for recording observations made by personnel conducting scheduled inspections of SWER installations ("inspectors") regarding the condition of installations, or making such records available to inspectors for comparison with observations at later inspections; failing to ensure, or take reasonable steps to ensure, that training provided to personnel conducting scheduled inspections of SWER installations ( inspectors ): complied with applicable "competencies" recognised by the Australian Qualifications & Training Framework; and

24 was structured, delivered, documented, assessed and, where test results or work performance were unsatisfactory, remediated in accordance with reasonable training industry practice; (xiii) failing to take reasonable steps to ensure that inspectors received adequate training in, the identification and correct fitting of, or risk factors affecting, or damage to installations on the SWER network; (xivii)failing to take reasonable steps to ensure inspectors did not receive training instruction to the effect that a "quick scan" of a SWER conductor from ground level was a sufficient inspection, or if not sufficient was nevertheless the best inspection that was required of them; (xiv) failing to take reasonable steps to ensure that inspectors, following training, were competent in the identification and correct fitting of, or risk factors affecting, or damage to installations on the SWER network; (xvi) failing to take reasonable steps to ensure that inspectors trained as referred to in particulars (xiiiv) and (xiv) above received appropriate corrective training before being permitted to carry out unsupervised inspections; (xvii) failing to take reasonable steps to ensure that inspectors identified by either SPI or UAM or their agents as having failed an audit, completed appropriate corrective training and demonstrated appropriate competency before being permitted to resume unsupervised inspections; (xviii) failing to take reasonable steps to ensure that the inspection manual provided to inspectors was at all times reasonably suitable as a reference guide; (xixvi) failing to require scheduled inspections to be carried out by two-person inspection teams; (xvii)failing to take reasonable steps to ensure that inspectors recorded observations for each installation on a SWER pole and did so while on site at the pole; (xviii)failing, by its servants and agents, to exercise due skill, care and diligence in inspecting the Valley Span and in particular failing to do so when undertaking a scheduled inspection of the Valley Span in or about February 2008; (xix) alternatively to (xxviii), failing to take reasonable steps to ensure its contractors exercised due skill, care and diligence in carrying out the February 2008 asset inspection. Engineering failures (xxa) failing, following its acquisition of the Valley Span in or around 1994, to correctly construct or configure or install the Valley Span SWER installations; (xxi) failing to fit vibration dampers to the Valley Span; (xxii) having or purporting to have, and observing a policy of not installing vibration dampers on existing spans; (xxiii) failing to take reasonable steps to ensure the Valley Span was tensioned in accordance with ENA guidelines to reduce the risk of damage from vibration and metal fatigue; (xxiviii) failing to install adequate circuit-breaking devices on the Valley Span;

25 (xxivi) installing on the Valley Span a circuit-breaking device, being an oil-operated automatic circuit recloser (OACR), programmed to "reclose" and resume transmission of electricity following a fault detection; (xv) failing to set the OACR to minimise the duration of electricity flow following a fault detection; (xvi) failing to "suppress" the reclose function on the OACR at the commencement of the summer season, or at any time prior to 7 February 2009; Further particulars will be provided after discovery and expert evidence. Sp AusNet Nuisance 73. Insofar as the plaintiff brings the proceeding as a subgroup representative of those group members (subgroup members) who are alleged to have suffered injury, loss or damage (which loss and damage is not admitted) alleged to have been caused by the Kilmore fire's interference in their use or enjoyment of land (which is not admitted), UAM says as follows. 74. At all material times each of: The risks referred to in paragraphs 68 and 69 above; and The risk that a bushfire ignited by a discharge of electricity from the SWER line would unreasonably interfere with the use or enjoyment of interests in land: (i) (ii) (iii) across which the fire passed; or affected by the physical consequences of fire, such as smoke; or the subject of emergency activity to prevent the spread of fire, including but not limited to, the clearing of firebreaks; were reasonably foreseeable to SP AusNet. 75. By transmitting electricity on the SWER line at a time, being 7 February 2009, when the SWER line was not safe or not operated safely, SP AusNet: Caused or allowed an unplanned discharge of electricity to occur; and thereby Brought onto land under the Pole 38 stay a fire, which became the Kilmore fire. The SWER line was not safe, and not being operated safely, by reason of the matters set out in the particulars under paragraph 19 above

26 76. The Kilmore fire unreasonably interfered in the use or enjoyment by the plaintiff and subgroup members of interests which they held in land (SP AusNet nuisance). Loss and Damage Claims against SP AusNet 77. If the plaintiff and / or any claimant and / or any subgroup member (as the case may be) has suffered any loss and damage as a result of the Kilmore fire (which is not admitted) such loss and damage was caused by: (d) The breach by SP AusNet of the SP AusNet Statutory Duty; The breach by SP AusNet of the SP AusNet General Duties; further and alternatively The SP AusNet nuisance; further and alternatively The breaches of duty by SECV, and/or ESV, for which SP AusNet is liable as alleged in paragraph 90O. 78. The Kilmore fire was a natural and foreseeable consequence of the breaches of duty alleged in paragraphs 77 to 77 (d) above. 79. By reason of the matters set out: In paragraphs 77 and 78, SP AusNet is liable for the claimants' loss and damage in respect of the ELPD reasonable care claims; further and in the alternative In paragraphs 77 and 78, (regarding SP AusNet), paragraphs 82 and 83 (regarding the DSE Secretary), and paragraphs 86 to 87 (regarding the CFA), if (which is denied), UAM is liable to the claimants in respect of the ELPD reasonable care claims, SP AusNet is, together with one or more persons, a person whose act or omissions caused the claimants' loss and damage within the meaning of Part IVAA of the Wrongs Act, and accordingly liable in proportion to its responsibility; SECTION F2: DSE SECRETARY 80. Further and in the alternative to paragraphs 29 to 79, by reason of Part IVAA of the Wrongs Act, UAM adopts the plaintiff's position against the third defendant (DSE Secretary) as set out below. 81. UAM refers to and repeats paragraphs 54 to 108 of the plaintiff's statement of claim. 82. Further and in the alternative to paragraphs 77 to 79 (regarding SP AusNet), if the plaintiff and / or any claimant has suffered loss and damage as a result of the Kilmore fire (which is not admitted) such loss and damage was caused by the breach by the DSE Secretary of:

27 The First DSE Fire Duty; and / or The Second DSE Fire Duty; and / or The DSE Fire Duty. 83. The Kilmore fire was a natural and foreseeable consequence of the breaches of duty alleged in the preceding paragraph. 84. By reason of the matters set out: In paragraphs 82 and 83, the DSE Secretary is liable for the claimants' loss and damage; further and in the alternative In paragraphs 77 to 79 (regarding SP AusNet), paragraphs 82 to 84 (regarding the DSE Secretary), and paragraphs 87 to 89 (regarding the CFA), if (which is denied), UAM is liable to the claimants in respect of the ELPD reasonable care claims, the DSE Secretary is, together with one or more persons, a person whose acts or omissions caused the claimants' loss and damage within the meaning of Part IVAA of the Wrongs Act, and accordingly liable in proportion to its responsibility. SECTION F3: CFA 85. Further and in the alternative to paragraphs 29 to 84, by reason of Part IVAA of the Wrongs Act, UAM adopts the plaintiff's position against the fourth defendant (the CFA) as set out below. 86. UAM refers to and repeats paragraphs 110 to 143 of the plaintiff's statement of claim. 87. Further and in the alternative to paragraphs 77 to 79 (regarding SP AusNet), and paragraphs 82 to 84 (regarding the DSE Secretary of State), if the plaintiff and / or any claimant has suffered loss and damage as a result of the Kilmore fire (which is not admitted) such loss and damage was caused by the breach by the CFA of: The CFA Statutory Suppression Duty; and / or The CFA Suppression Duty. 88. The Kilmore fire was a natural and foreseeable consequence of the breaches of duty alleged in the preceding paragraph. 89. By reason of the matters set out: In the paragraphs 87 and 88, the CFA is liable for the claimants' loss and damage; further and in the alternative