Landowners affected by a large fire near Tarago almost two years ago will not recover their full losses through a class action.
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The Victorian firm that launched the action in the NSW Supreme Court has also acknowledged that “substantial” legal fees will be taken out of any settlement.
Warrnambool-based Maddens Lawyers mounted the class action against Infigen Energy following the January 17, 2017 ‘Currandooley’ fire that destroyed almost 3400 hectares near Tarago.
The Rural Fire Service confirmed it started after a bird struck a high-voltage power line on Infigen Energy’s Capital wind farm. The bird caught fire, dropped to the ground, sparking the blaze off Taylors Creek Road.
The fire, which burnt over several days, destroyed a house, hundreds of sheep, fencing, shelter belts, pasture and farm infrastructure.
In the case that ran in the NSW Supreme Court from September 24 to October 8 this year, Maddens argued on behalf of lead plaintiffs and Mount Fairy couple Fred Kuhn and Liz Stewart that Infigen was aware of the risk of a bird strike on its infrastructure and subsequent fire and failed to take preventative action until after the event.
The firm’s principal, Brendan Pendergast said 26 other landowners joined the action.
However, Infigen denied liability. Mr Pendergast said the question of negligence was “heavily contested” in the case.
“Numerous witnesses gave evidence for the plaintiff and the defence was hard fought on quantum and liability issues,” he told The Post.
“The parties entered into talks to resolve this and the result is a settlement reached between the plaintiff and defendant.”
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The proposed amount remains confidential, except to those involved in the action. Its terms are being advertised and any objections must be lodged to the NSW Supreme Court by November 28. If there are no objections, the court will approve the settlement on December 7, but if there are, the matter will likely head back to court, Mr Pendergast says.
However the amount is less than the total claimed. Affected property owners would only receive a proportion of their claims.
Mr Pendergast said the proper assessment of losses was hotly contested.
“(But) we say this is an appropriate settlement and we’ll be recommending the court approve it,” he said.
“...Certainly the lead plaintiffs who have been involved throughout are happy with it.”
Legal fees, which Mr Pendergast conceded were substantial, would be taken out of the settlement. The lead plaintiffs will receive $25,000 for the “personal burden” of heading the class action.
He said an independent assessment of legal costs was being undertaken and this would be put before the court.
Under the settlement’s terms, class action members cannot take separate legal action against Infigen.
The Post is aware of another landowner, outside the class action, who mounted a case against Infigen in the Supreme Court but reached resolution before a trial.
Maddens has launched four class actions over separate fires in Victoria, including Terang and Sisters/Garvoc. It also has a long history of litigation in this field. Its class actions also include the 1983 Ash Wednesday fires and the 2013 Blue Mountains blaze. Some of these involved electricity infrastructure.
However, the Warnambool Standard reported that leading insurers covering landowners affected by the Terang and Sisters/Garvoc fires were offering no legal cost settlements for the first time. It potentially changed the way bushfire victims pursued compensation.
A spokesman for insurer IAG said in contrast, class actions usually involved millions of dollars in legal fees that often “heavily diluted” the settlement sum.
Mr Pendergast said there was no final figure on his firm’s legal costs for the Currandooley case at this stage. He rejected suggestions such actions were profit-making exercises.
“There is a commercial component but it’s not a grand profit-making scheme,” he said.
“Our primary focus is to recover uninsured losses for mum and dad farmers. We don’t act for the big end of town but for those reeling from the effects of fire.”
Maddens has also launched a class action over the February, 2017 Carwoola blaze which burnt out 3500ha. It is claiming negligence by a plumbing firm, alleging an employee’s use of a power cutting wheel sparked the fire.
The firm has denied the allegation.
The matter has been adjourned in the NSW Supreme Court.
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