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
1. A duty of care;
2. A breach of that duty – conduct that falls
below the standard of a reasonable
person in the defendant’s position; and
3. 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 [1997] 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.” ([25]).
Warragamba Winery v NSW
[2012] NSWSC 701(26 June 2012)
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 Ltd v State Fire
Commission
[2012] TASSC 54 (24 August 2012)
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”. ([41]).
Electro Optic Systems & West v State
of New South Wales
[2012] 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.
Source of claims
200
180
65%
65% of
of all
claims
claims
160
36
140
120
Claims not paid
100
Claims paid
27%
27% of
of all
claims
claims
80
136
60
20
40
50
20
5% of all
5% of
claims
claims
3
11
0
All fires
MVA
Not otherwise classified
14
Fire claims
70
60
12
11
50
40
Claims not paid
Claims paid
30
54
20
10
45
9
4
20
17
0
Back Burn
HR Burn
Firefighting/operations
Fire not otherwise
classifed
Type of damage
250
200
55
150
Claims not paid
Claims paid
100
166
50
3
30
0
Personal Injury
Property damage
Where the claimant was a
member of the RFS
25
0
20
15
Claims not paid
Claims paid
10
21
5
1
4
1
2
0
Personal injury
Property damage whilst on duty
Property damage not related to
RFS status
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: michael.eburn@anu.edu.au
W: http://law.anu.edu.au/staff/michael-eburn
Blog: http://emergencylaw.wordpress.com/