Neighbours Sue Wind Power Operator – Infigen – for $20m Damages Caused by Devastating Wind Farm Fire

On 17 January 2017, wind farm operator Infigen sparked a blaze that ripped across the southern Tablelands of NSW and destroyed 3,400 hectares (8,400 acres), hundreds of sheep and cattle, sheds and at least one home. STT first reported on it on 25 January: Wind Power Setting the World on Fire: Infigen Sparks Devastating NSW Bushfire

The losses suffered by neighbours are in the tens of $millions. A class-action just launched by some of those neighbours is chasing Australia’s most notorious wind power outfit for $20 million in loss and damage, with more neighbours set to join the action and add many $millions more to that number.

Wind farm company sued over bushfire caused by electrocuted crow
The Australian
Matthew Spencer
4 May 2017

The owners of a wind farm near Canberra are being sued for sparking a catastrophic bushfire in January, in what is believed to be the first class action of its type in Australia.

Victorian firm Maddens Lawyers filed the class action against Infigen Energy Ltd in the NSW Supreme Court after a crow electrocuted by a transmission line carrying power from the company’s Woodlawn wind farm sparked the fire, which burned 3400ha and caused up to $20 million damage.

The statement of claim, filed on behalf of lead plaintiffs Fred Kuhn and Liz Stewart of Mount Fairy, east of Canberra, alleges Infigen was aware of the risk a bird strike on its high-voltage ­infrastructure could cause a fire.

The blaze, known as the Currandooley fire, was caused when a crow connected with overhead electrical infrastructure, caught alight and dropped into dry foliage beneath the powerline that transfers electricity from the Woodlawn farm to a substation at the nearby Capital wind farm.

Both wind farms, the power line and substation are owned and operated by Infigen Energy.

The company was aware of numerous previous incidents of bird strike on its electrical infrastructure but failed to take appropriate steps to address the risk until after the fire, the statement of claim alleges.

Thirty-three individual claim­ants from 22 properties affected by the January 17 wildfire have instructed Maddens to seek compensation for their loss and damage.

The law firm said it was aware of six more properties affected by the fire but was yet to receive instructions from those owners.

Maddens’ class-action principal Brendan Pendergast said Infigen was aware of the bird strike problem but had failed to address issues such as managing fuel load under the transmission line.

However, the company slashed grass and installed compacted gravel under each pole of the transmission line after the fire, Mr Pendergast said.

He said the company could also have instituted some design fixes on the transmission line to prevent birds being electrocuted.

“It is regrettable that these simple steps were not taken sooner,” Mr Pendergast said. “If that had been done, this fire would not have occurred.”

Maddens has been involved in bushfire litigation since Ash Wednesday in 1983, and its cases include Victoria’s 2009 Black Saturday catastrophe.

Mr Pendergast said he believed the Currandooley class action was the first bushfire litigation against a wind farm.
The Australian

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Here’s the local rag’s take on Infigen’s liability.

Lawyers mount class action over Currandooley fire
Goulburn Post
Louise Thrower
3 May 2017

A Victorian legal firm has mounted a class action over the Currandooley fire which burnt out almost 3400 hectares near Tarago in January.

Maddens Lawyers of Warrnambool will represent 33 individuals owning 22 properties in the NSW Supreme Court action.

The firm’s class action principal, Brendan Pendergast, said the action alleged that Infigen Energy “was aware of the risk that a bird strike to its high voltage power line could cause a fire.” Further, it was aware of previous similar incidents but “failed to take appropriate steps to address the risk until after the fire.”

Infigen has denied any liability for the outbreak. A spokesman said the company maintained “appropriate insurance.”

The blaze started at Infigen’s Capital Wind Farm off Taylors Creek Road, near Tarago on the morning of January 17. It tore through 3384ha, fanned by strong winds and fuelled by high heat and dry conditions.
Goulburn Post

No one, not even senior RFS firefighters, believes that a crow started the fire. When initially presented with that story by our NSW’s operatives, an experienced RFS officer burst out laughing.

Infigen started the ‘crow did it’ ruse in an effort to deflect attention from the real culprits, maintenance workers on site who were seen leaving the scene minutes before the bushfire went out of control and spread.

As we reported back in January, from what our NSW operatives tell us, the fire was started by maintenance workers employed or contracted by Infigen.

Between 9am and 10am on 17 January, workers were engaged in the maintenance of the turbine depicted in the right foreground of the picture above.

The fire broke out just before 10am, and in the hot and blustery conditions, it didn’t take long to turn into a serious disaster and mortal threat.

As to the ignition source, local farmers believe that the workers were operating welding or grinding equipment at the time, although one suggestion at the time was that their vehicle may have started it; and, on what we’ve been told more recently, there is a strong possibility that it did start the blaze.

A petrol powered vehicle with a catalytic converter will readily start a grass fire, if the vehicle is parked on dry grass (of which there was plenty on-site that day).

Modern diesel powered vehicles are also equipped with diesel particulate filters (DPF) or diesel particulate diffusers (DPD), which remove particulate matter (soot) from exhaust gases and, like catalytic converters, reach temperatures of 500-900°C during the ‘regeneration’ phase, when the soot is effectively incinerated inside the DPF or DPD unit.

In this article – Rural Fire Service trucks a fire hazard – in a fiery twist of irony, brand new diesel fire trucks fitted with DPD systems were found to ignite flammable material within a matter of seconds.

On 17 January, a total fire ban was in place in NSW, covering the area to the north, east and west of Canberra. It reached a top of 39C in the region, with wind gusts of about 50 km/h – what farmers will, in their usual understated manner, refer to as “a bad day”.

Rules are set to avoid bushfires on high fire danger days – when a Total Fire Ban is called prohibitions apply, such as this one that appears on the NSW Rural Fire Service website:

You cannot light, maintain or use a fire in the open, or to carry out any activity in the open that causes, or is likely to cause, a fire. No general purpose hot works such as using tractors, slashers and/or welding, grinding or gas cutting can be done in the open either, and this includes incinerators and barbecues which burn solid fuel, eg. wood or charcoal.

On days declared a ‘total fire ban’, you cannot ‘carry out any activity in the open that causes, or is likely to cause, a fire. No general purpose hot works such as using tractors, slashers and/or welding, grinding or gas cutting can be done in the open either’.

Engaging in any such activity is risky business. Under the NSW Legislation there are substantial penalties “for a fire that escapes and damages or destroys life, property or the environment can attract much greater fines and gaol terms with maximums at $132,000 and/or 14 years gaol.” And, as the RFS website notes:

Civil law suits can also be brought against the person responsible for a fire by those seeking compensation for losses sustained.

Indeed they can, and in this case they have, in a multi-$million case against Infigen, for all the losses sustained.

A neighbouring property owner who suffers losses caused by bushfire will claim on their own property insurance for the loss of crops, pasture, sheds, dwellings, vehicles, equipment and livestock. If that property owner did not cause the bushfire, their insurer will satisfy the claim. However, that insurer will seek to recover what it has paid out under their policy from whoever it was that was responsible for the bushfire that caused their customer’s losses: what’s called a “recovery action” – the insurer steps into the shoes of their insured and recovers what has been paid out under the policy from a negligent wrongdoer.

The terms of property insurance policies are one of the reasons why farmers refrain from harvesting crops on total fire ban days and generally avoid the kinds of activities in the open that cause, or are likely to cause, a bushfire.

If a property owner starts a fire on their property, and that fire escapes and causes losses to their neighbour, the property owner may still be covered under their insurance policy for the losses caused to their neighbour.

However, they will not be covered on a total fire ban day if the activity they have engaged in is an activity which is prohibited under state fire ban regulations.

In short, if a farmer is harvesting or welding or using an angle grinder outside on a total fire ban day and a bushfire starts, he will be personally liable for the financial losses caused to his neighbours, as his insurer will deny cover under a term that excludes operation of the policy in those circumstances.

Infigen are still sticking with the crow story, denying any liability for the losses caused and asserting that they are fully insured, in any event. Like most of of the media manipulation that emanates from Infigen, claims to be taken with more than just a grain of salt.

With $20 or $30 million at stake and a team of lawyers specialising in class-action lawsuits for loss and damage caused by bushfires hot on their heels, Infigen’s efforts to avoid responsibility for a devastating bushfire are about to be tested in the Supreme Court of NSW, where propaganda and myths, fortunately, carry very little weight.