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). |
| Name | Kilmore East–Kinglake Bushfire (Black Saturday) Class Action: SP AusNet (power distribution company), Kilmore East-Kinglake (community), Australia |
| Country | Australia |
| Province | Victoria |
| Site | Kilmore East–Kinglake |
| Accuracy of Location | HIGH local level |
| 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 Commodities | Electricity |
| 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. FoE Australia (Delbridge and Walker 2014: 23) list a series of losses, including: around one-third of the water catchments for Melbourne (Victoria’s capital city) were burnt; CO2 emissions from fires on public land during January–February 2009 are estimated by the relevant state agency (Department of Sustainability and Environment) to amount to more than 8.5mn tonnes; the state agency VicForests estimated 10,000ha forest was burnt, including ecologically and commercially valuable Mountain Ash; amongst other efforts, approximately 14,740 volunteer-days were spent repairing often uninsured fencing; more than 1mn animals died, including iconic kangaroos and almost 12,000 stock; 220 tonnes of trout (in farms) were lost. Fighting the fire were: the Country Fire Authority (938 staff and 92 appliances); the Metropolitan Fire Brigade (32 staff and 9 appliances); the Networked Emergency Organisation (107 staff and 11 aircraft) and numbers of residents and supporters. The Victorian Supreme Court constructed a courtroom to hear the electronically run class action, which took more than 200 sitting days (16 months). Blackburn (2014) listed the extent of proceedings as including: • 26 pre-trial directions hearings; • 34 pre-trial applications; • 60 court rulings made; • evidence heard from 40 expert and 60 lay witnesses; • 22,466 documents loaded on to the electronic courtbook; • 10,364 documents tendered; and • in excess of 20,300 pages of transcript. Justice Osborn (Supreme Court of Victoria) formally approved the settlement deed agreed by parties to the Kilmore East Class Action (15 July 2014) on 23 December 2014. Without admitting liability, the parties paid approximately A$494.7mn: AusNet Services (A$378.6mn through their liability insurers); Victorian State Parties (because they neither conducted adequate cool burning of vegetation in the area nor provided sufficient warning of the impending fire — A$103.6mn, also through insurers); and the asset manger, Utility Services Corporation Ltd (A$12.5m). SP AusNet (2014) estimated their payout at ‘between 22% and 35% of the total losses suffered and costs incurred by those affected by the Kilmore East Bushfire’. Given the disbursement was expected to take 18 months interest fees would increase the final pay out (i.e. minus legal and associated costs) to victims of over $430,000 (Whealing, The Age 2014). |
| Project Area (in hectares) | 125,383 |
| Type of Population | Rural |
| Potential Affected Population | Approximately 10,000 directly and deeply affected stretching to millions less and more indirectly affected. |
| Start Date | 09/02/2009 |
| End Date | 23/12/2014 |
| Company Names or State Enterprises | SP 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 actors | A 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 supporters | EJOs 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. |
| Intensity of Conflict (at highest level) | MEDIUM (street protests, visible mobilization) |
| When did the mobilization begin | Mobilization for reparations once impacts have been felt |
| Groups Mobilizing | Farmers Local government/political parties Neighbours/citizens/communities Women Local scientists/professionals |
| Forms of Mobilization | Development 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 |
| Environmental Impacts | Visible: 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 |
| Other | Climate 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 Impacts | Visible: 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 |
| Other | Severe 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 Impacts | Visible: Displacement, Loss of livelihood, Social problems (alcoholism, prostitution, etc..), Land dispossession, Loss of landscape/sense of place, Other socio-economic impacts |
| Other | The 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. |
| Project Status | In operation |
| Pathways for conflict outcome / response | Compensation 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 Alternatives | EJOs 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. |
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| Other Comments | Other changes to regulations have ensued. There is a massive amount of black and grey material available, such as social media records. |
| Contributor | Anitra Nelson, RMIT University Centre for Urban Research: [email protected] |
| Last update | 13/01/2015 |