Three cases from 2012 Dr Michael Eburn Barrister, and Senior Fellow, ANU College of Law and Fenner School of Environment and Society.
An action in negligence requires • A duty of care; • A breach of that duty – conduct that falls below the standard of a reasonable person in the defendant’s position; and • The breach must cause the plaintiff’s damage.
Three cases from 2012 • Warragamba Winery v NSW (fire in 2001), • Myer Stores v State Fire Commission (Tasmania) (fire in 2007) and • Electro Optics Systems & West v NSW (Canberra 2003)
But first Capital and Counties PLC v Hampshire County Council  2 All ER 865“In our judgment the fire brigade are not under a common law duty to answer the call for help and are not under a duty to take care to do so. If therefore they fail to turn up, or fail to turn up in time because they have carelessly misunderstood the message, get lost on the way or run into a tree, they are not liable.” ().
Warragamba Winery • No duty; but • If there was, there was no breach; but • If there was, it didn’t cause the damage; and • If it did, the RFS was protected by the Rural Fires Act 1997 (NSW) s 128.
Myer Stores “At least in relation to property damage, legislation in this State since 1920 had reflected a policy that the financial burden of unfortunate operational decisions should be borne by insurers, or by the uninsured. That seems possibly to have been a quid pro quo for the State providing fire-fighting services which, in times long past, were provided by insurance companies, and not at the expense of the public”. ().
Electro Optic Systems & West v State of New South Wales  ACTSC 184 (17 December 2012)
West v NSW • Only two allegations of negligence were made out • failure to actually send crews to examine the fire on the 9th January’ and • failure to prepare the Goodradigbee River bank to act as an effective fire break.
But there was no liability because of • Civil Liability Act 2002 (NSW) s 43. • NOT Rural Fires Act 1997 (NSW) s 128 (but that would have given a defence).
Warragamba and West • The same fire authority and the same Act but: • Walmsley JA found no duty of care • Higgins CJ found there was a duty of care. • The matter is the subject of an appeal to the ACT Court of Appeal.
But … between 9/9/89 and 3/7/10 (21 years) Suncorp identified: • 263 Claims (an average of 13 per year). 106 files were retrieved and reviewed. • 28 (10.6%) were litigated: • 16 Supreme Court (7 from one fire); • 6 District Court; • 6 Local Court. • 235 (89.4%) not litigated.
200 180 160 36 140 120 Claims not paid 100 Claims paid 80 136 60 20 40 50 20 3 11 0 All fires MVA Not otherwise classified Source of claims 65% of all claims 65% of claims 27% of all claims 27% of claims 5% of all claims 5% of claims
70 60 12 11 50 40 Claims not paid Claims paid 30 54 45 4 9 20 10 20 17 0 Back Burn HR Burn Firefighting/operations Fire not otherwise classifed Fire claims
250 200 55 150 Claims not paid Claims paid 100 166 50 3 30 0 Personal Injury Property damage Type of damage
25 0 20 15 Claims not paid Claims paid 21 10 5 1 1 4 2 0 Personal injury Property damage whilst on duty Property damage not related to RFS status Where the claimant was amember of the RFS
Claims settled • Payments were made in 203 (77% of) cases. • No payment in 60 (23% of) cases. • Why does the insurer make payments in 77% of cases?
Why? It costs more to defend claims (particularly small claims) than to settle the matter. State agencies are bound by ‘model litigant’ rules which require them to ‘avoid litigation’. Courts have a number of ‘dispute resolution’ processes. The overriding objective of litigation is to settle disputes, not enforce legal rights and duties. The TMF isn’t on ‘your’ side.
Lessons for Group Captains • No one is suing individual fire fighters – and no one does, or will (Lobsey v Care (1983) 1 MVR 1 excepted). • Vicarious liability will apply and has never been challenged. • Liability is different to being asked difficult questions.
Questions? Comments? Michael Eburn P: 6125 6424 E:firstname.lastname@example.org W:http://law.anu.edu.au/staff/michael-eburn Blog:http://emergencylaw.wordpress.com/