Kilmore East–Kinglake Bushfire (Black Saturday) Class Action: SP AusNet (power distribution company), Kilmore East-Kinglake (community), Australia


Description
A severe bushfire was started by faulty electrical equipment (company negligence) leading to a class action — one of two class actions to arise from the 2009 Black Saturday fires in Victoria, Australia. The group members associated with the plaintiff Carol Matthews in the Kilmore East–Kinglake Bushfire Class Action comprised approximately 1,700 personal injury and dependency claimants, 4,000 property loss claimants and more than 5000 pure economic loss claimants (Blackburn 2014).
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Basic Data
NameKilmore East–Kinglake Bushfire (Black Saturday) Class Action: SP AusNet (power distribution company), Kilmore East-Kinglake (community), Australia
CountryAustralia
ProvinceVictoria
SiteKilmore East–Kinglake
Accuracy of LocationHIGH local level
Source of Conflict
Type of Conflict (1st level)Industrial and Utilities conflicts
Type of Conflict (2nd level)Other industries
Climate change related conflicts (glaciers and small islands)
Coal extraction and processing
Specific CommoditiesElectricity
Project Details and Actors
Project Details
The Kilmore East-Kinglake bushfire killed 119 people, caused 232 casualties and destroyed 1242 homes. The land area burned was 125,383ha. However, Impacts such as air and water pollution were much more widespread — and long-term — than the land area burnt.
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Project Area (in hectares)125,383
Type of PopulationRural
Potential Affected PopulationApproximately 10,000 directly and deeply affected stretching to millions less and more indirectly affected.
Start Date09/02/2009
End Date23/12/2014
Company Names or State EnterprisesSP AusNet from Australia - Their negligence is said to have caused the Kilmore East fire
Utility Services Corporation Ltd (UAM) from Australia - Managed electrical asset deemed faulty and cause of fire
Country Fire Authority (CFA) from Australia - Fought the fire
State of Victoria from Australia - Formally responsible for certain emergency and environmental agencies of the state
Secretary to the Department of Environment and Primary Industries (for the Department of Sustainability and Environment) (DSE/DEPI) from Australia - Regulates the energy supplier and other parties with respect to environmental matters
Relevant government actorsA large number of government agencies were brought into the fire fighting, relief and recovery processes, including: the Department of Sustainability and Environment, now Department of Environment and Primary Industries; the Country Fire Authority; the Emergency Services; Supreme Court of Victoria; Networked Emergency Organisation; Metropolitan Fire Brigade; and Centrelink.
Environmental justice organisations and other supportersEJOs such as Friends of the Earth (Australia) were not directly involved in the class action, though active in the general debate and campaigns over preventing and ameliorating bushfires (made more likely through climate change) and supporting victims. In particular, FoE (Australia) (2014, 2007) has highlighted the disproportionate burden of such ‘natural’ disasters on low-income households and communities, the elderly, those who cannot afford enough or any insurance.
The Conflict and the Mobilization
Intensity of Conflict (at highest level)MEDIUM (street protests, visible mobilization)
When did the mobilization beginMobilization for reparations once impacts have been felt
Groups MobilizingFarmers
Local government/political parties
Neighbours/citizens/communities
Women
Local scientists/professionals
Forms of MobilizationDevelopment of a network/collective action
Lawsuits, court cases, judicial activism
Media based activism/alternative media
Official complaint letters and petitions
Public campaigns
Property damage/arson
Appeals/recourse to economic valuation of the environment
Impacts
Environmental ImpactsVisible: Air pollution, Biodiversity loss (wildlife, agro-diversity), Fires, Global warming, Loss of landscape/aesthetic degradation, Noise pollution, Soil contamination, Soil erosion, Waste overflow, Deforestation and loss of vegetation cover, Surface water pollution / Decreasing water (physico-chemical, biological) quality, Reduced ecological / hydrological connectivity, Other Environmental impacts
Potential: Groundwater pollution or depletion
OtherClimate change is exacerbated by the massive carbon emissions caused in severe bush fires and the severity and frequency of bush fires is increased as global warming grows.
Health ImpactsVisible: Accidents, Mental problems including stress, depression and suicide, Deaths, Other Health impacts
Potential: Exposure to unknown or uncertain complex risks (radiation, etc…), Violence related health impacts (homicides, rape, etc..) , Health problems related to alcoholism, prostitution
OtherSevere bush fires cause severe long-term impacts on affected populations, including post-traumatic shock syndrome especially for the young, old and otherwise vulnerable, ongoing impacts of injuries such as burns. Typically the poorer and more vulnerable disadvantaged households are not insured or under-insured for property, injury, health benefits or death.
Socio-economic ImpactsVisible: Displacement, Loss of livelihood, Social problems (alcoholism, prostitution, etc..), Land dispossession, Loss of landscape/sense of place, Other socio-economic impacts
OtherThe extensive property damage of the Black Saturday fires has led to tighter regulations on the environmental locations in which people build and rebuild their homes, as well as limits on the materials and design of their homes, to improve fire prevention and ameliorate fire damage. However, this has disadvantaged numbers of people who are attached to rebuilding and living where they had and those who cannot afford the greater costs involved.

Citizens of Victoria — especially those in the directly affected areas — were deeply disturbed by the Black Saturday fires, resulting in a lot of media, pressures on politicians and government agencies, and outrage that faulty electrical equipment might have triggered the Kilmore East — and several other — fires.
Outcome
Project StatusIn operation
Pathways for conflict outcome / responseCompensation
Environmental improvements, rehabilitation/restoration of area
Court decision (victory for environmental justice)
Negotiated alternative solution
New legislation
Strengthening of participation
New Environmental Impact Assessment/Study
Development of AlternativesEJOs such as FoE (Australia) and the Australian Conservation Foundation emphasise the environmental and social cost of severe bush fires, and the compounding factor of global warming (for examples, see Delbridge and Walker 2014: 23, 26; ACF 2013; Van der Merwe 2013). Most fires occur in the south-east of Australia. The Australian Commonwealth Scientific and Industrial Research Organisation (CSIRO) has modeled 65–300 per cent more ‘extreme fire danger days’ from 1990 to 2020, depending on the level of global warming which might occur (Walsh, 2009).

Eight of the Royal Commission’s 67 recommendations focused on prevention and mitigation of electrical causes of future bushfires, including changing Victoria’s Electrical Safety Act 1998 to ensure that companies replace aerial cabling with underground or similar less dangerous apparatus, improve inspection of its assets and take responsibility for clearing surrounding vegetation (VBRC Summary: 29–30).

There is a continuous debate on the extent of cool-burning and vegetation removal necessary to prevent and ameliorate fire. In this debate conservationists have been pitted against timber industry representatives whose interests seem to be served by strict clearance regimes. Indigenous peoples regularly burned areas as preventative fire containment strategies.
Do you consider this as a success?Yes
Why? Explain briefly.Supreme Court Justice Robert Osborn approved the ‘reasonable’ settlement due to the substantial compensation for victims: ‘The settlement offers group members a series of material advantages by the way of finality, minimisation of further stress and anxiety, advancement of payment and containment of costs’. Rory Walsh (Maurice Blackburn Lawyers) said, ‘We hope that that money can help people alleviate some of the hardships that they continue to experience today.’ (See ABC 2014 23 Dec.) Even though the defendants did not admit liability, they will work under more stringent regulation in future. Lead plaintiff Carol Matthews had lost her son Sam and is reported to have said: ‘Nothing will ever replace what we have lost, but today we have been vindicated for standing up for our rights and hopefully we’ve played an important role in ensuring large organisations adhere to higher standards in the interests of community safety’ (Whealing 2014).

Rory Walsh who represented the plaintiffs said that ‘the settlement delivers a sense of justice to the victims.’ (Whealing) However, the Department of Human Services almost immediately alerted all potential recipients of relief that in the case of compensation they would be obliged to return all social security payments that they had received (ABC 12 December 2014). In short, no amount of money can compensate for the 119 deaths, the 232 casualties and environmental qualities (animals, plants, water, air and forest) of the burned 125,383 ha.
Sources and Materials
Legislations

A raft of planning and building regulations, such as Amendment VC109 to the Victoria Planning provisions, which supports community resilience to bushfire and facilitates landowners making planning applications to local councils re. the new Bushfire Management Overlay (BMO).
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Victoria has strict regulations on lighting fires outside.
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Australian Standard (AS) 3959–2009 'Construction of buildings in bushfire-prone areas'
Soon after the Black Saturday fires, 11 March 2009, the Victorian Government introduced the Australian Standard (AS) 3959–2009 'Construction of buildings in bushfire-prone areas', a new residential building standard to better protect Victorian homes from bushfires.
[click to view]

References

Carlyon, Peta 2014 (11 June) Black Saturday bushfires: Victoria's largest class action over Kilmore East fire enters final week.
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Blackburn (2014) AusNet Services December 2014 Court approval of Kilmore East Bushfire Class Action (media release 23 December)
[click to view]

ABC (2014) Black Saturday bushfires: Centrelink apologises for letters warning of welfare repayments (12 December)
[click to view]

ACF (2013) Heatwaves, bushfires and climate change (Media release 4 January).
[click to view]

ABC (2014) Black Saturday bushfire survivors secure $500 million in Australia's
largest class action payout (15 July).
[click to view]

ABC (2014) Black Saturday class action: Judge approves $494m Kilmore East bushfire settlement (23 December).
[click to view]

Delbridge, Tom & Walker, Cam (2014) Natural Disasters and a Warming Climate; Understanding the Cumulative Financial Impacts on Victoria Friends of the Earth (Australia).
[click to view]

Lee, Jane (2014) Maintenance history ‘lacking’ — engineer. The Age, 21 May.
[click to view]

VBRC (2010) 2009 Victorian Bushfire Royal Commission Final Report — Summary. 2009 Victorian Bushfires Royal Commission, Parliament of Victoria, Melbourne.
[click to view]

VBRC (2010) 2009 Victorian Bushfire Royal Commission Volume 1: The Fires and the Fire Related Deaths, 2009 Victorian Bushfires Royal Commission, Parliament of Victoria, Melbourne.
[click to view]

Walsh, B. (2009) Why global warming may be fuelling Australia’s fires, Time, Science and Space, (9 February).
[click to view]

Van der Merwe (2013) Let's confront the reality of climate change. Post, 25 October.
[click to view]

Whealing, Justin (2014) ‘Black Saturday’ class action settlement a record. Lawyers Weekly, 24 December.
[click to view]

Links

Link to the main documents to come out of the 2009 Victorian Bushfires Royal Commission
[click to view]

Maurice Blackburn Lawyers (Melbourne) who represented the class action
[click to view]

The Australian Broadcasting Commission (ABC) developed a special website for Victorians and others involved to post visual, audio-visual and written reports of their experiences and observations of the Black Saturday fires.
[click to view]

Other CommentsOther changes to regulations have ensued. There is a massive amount of black and grey material available, such as social media records.
Meta Information
ContributorAnitra Nelson, RMIT University Centre for Urban Research: [email protected]
Last update13/01/2015
Comments