By Sophie Kesteven and Damien Carrick, ABC News' Law Report
Photo: AFP/PATRICK T. FALLON
Since fires swept through large parts of Los Angeles in January, more than 16,000 structures have been destroyed and at least 29 people have lost their lives.
Recently it was estimated that the economic loss could be more than US$250 billion.
Insurers are expected to fork out billions of dollars, but are there others who should be held responsible for covering this large bill?
Were fallen power lines to blame?
James Frantz, the head trial counsel for Frantz Law Group in San Diego, argues that the electricity provider Southern California Edison should be held partly responsible for their role in the large-scale fires.
He is representing more than 150 LA residents in a mass tort case against the electricity provider.
The case relates to the devastating Eaton fire, which claimed the lives of 17 people. Eyewitnesses believe the fire was started from power lines that fell close to homes, and they have supporting footage.
"It was in the high-voltage wires of Southern California Edison; there's no question about that," Frantz tells ABC Radio National's Law Report.
"Edison had stated that [the energy provider] had de-energised [disconnected an energy circuit from a power supply] - well, I think they probably did - but they did it too late. … Our experts believe that's the start of the Eaton fire in Pasadena, and I don't see any other cause for it right now. This seems to be the footprint on the Eaton fires - Southern California Edison," the wildfire litigation expert says.
There are a number of other factors that could contribute to negligence on an electricity provider's part.
"You do not have to prove negligence technically, but most of the time we find that there was negligence. Either they didn't repair the equipment, the circuit broke, they didn't maintain it, they didn't inspect it, or things like that, or a tree fell into their line, which should never happen," he says.
His firm has also commenced a separate action against the LA Water and Power Department for failure of their equipment.
"We know that their water suppression system failed," he argues. "We know that they have a 117 million gallon reservoir [that] they emptied a year ago. I don't know why they did it, and all their people are saying it was a bad thing to do, and they didn't have water. They ran out of water," he says.
Frantz claims, as a result, water wasn't available from the fire hydrants when firefighters were trying to stem the blazes.
There are many questions to be answered about the devastating fires in LA. And some of the answers could hold legal lessons for those dealing with bushfires here in Australia.
Fires in Australia
Dr Michael Eburn, a lecturer specialising in emergency law at Charles Sturt University, says there have been a number of cases against electricity providers in Australia in similar circumstances, but they've generally been settled out of court to avoid setting significant legal precedents.
"The general principle is, if you are the owner of the source of the fire, then you're likely to be liable. So if you're an electrical authority and it's your wires that have caused the fire, or you're a camper and you've lit a fire, that's when liability is going to attach," Eburn explains.
He points to the example of the class action litigation against the power transmission company, AusNet, following the 2009 Black Saturday fires in Victoria.
The blaze burned through 450,000 hectares of land, 173 people died, and many more were injured.
Hundreds of firefighters battled a huge out of control wildfire in Western Victoria, 23 February 2024. Photo: Supplied/ Ballarat Fire Brigade CFA
In that action, there were claims that negligence by the power line companies was behind the fires.
"Those allegations were always disputed," Eburn says. "They didn't admit that it was their system that caused the fire or that they were negligent. And those cases settled.
"There are lots of good reasons why a case settles," he says. One reason is that it's often cheaper than running the case.
"Everybody has some confidence in what they're going to get. If you go before a judge, you might win a lot, but you might lose everything. And so they settled.
"So we never actually got a ruling about whether or not it could be proved that it was the electoral authorities that started the fire, or that there had been any negligence," he adds.
The settlement saw the victims receiving a nearly AU$500 million payout from AusNet.
Is it legally safer to do nothing?
If a fire starts on a landowner's property, do they have a responsibility to contain that fire to protect their neighbours' property?
Eburn says it depends.
"[The landowners] certainly have a responsibility if they light a fire," he says.
For instance, some landowners may light a hazard-reduction fire to clear material that could be of risk to them and their neighbours.
But if that fire gets out of control and extends onto their neighbour's property, they could be held liable.
He points out that if landowners didn't start the fire, the fact that it burns from their land to their neighbours doesn't make them liable.
"That's a real legal problem, because that can, in fact, make it legally safer for landowners to do nothing," he says.
He points to the 1967 case of Goldman vs Hargrave, which involved a landholder who was liable when he attempted to negligently extinguish a fire that had been started by lightning.
He tried to cut down the tree, but he caused more harm, and it eventually spread through his actions.
"Maybe if he'd done nothing at all, he wouldn't have been liable," he says.
Eburn says it appears there is a public policy disconnection between what the law actually says and what people think landowners should be doing.
- ABC News
