LEGAL CONSEQUENCES FROM THE 2003 CANBERRA FIRES
Dr Michael Eburn
Senior Fellow
College of Law and
Fenner School of Environment and Society
The Australian National University
CANBERRA ACT 0200
In 2009 and 2010 there were two significant legal events arising from, and affecting,
Australia’s response to bushfires; the 2009 Victorian Bushfires Royal Commission and
litigation in the ACT Supreme Court arising from the January 2003 fires. This paper will
look at the issues being considered in the Canberra litigation.
THE DIFFERENCE BETWEEN A ROYAL COMMISSION AND LITIGATION
The differences between a Royal Commission and traditional litigation are set out below.
Royal Commission
The scope of the inquiry is The government in the terms of
determined by: reference
The decision on what evidence The Commission
to call is made by:
The role of the tribunal is: To investigate and report on the
issues raised in the terms of
reference.
The hearings result in: Recommendations that may or
may not be adopted. The
Commission can recommend
changes in law and practice
Litigation
The parties
The parties
To adjudicate the issues that are
in dispute. If the parties reach
agreement the case will settle
without a final result.
A decision that is binding on the
parties. The rulings reflect the
way the law is, not the way it
should be.
The most significant difference is that a court can make an order that is binding on the parties
and what a court says about the law can be applied in future cases. The lessons that will be
drawn from the Canberra litigation will depend on what issues are before the Court.
THE ISSUES IN THE CANBERRA LITIGATION
The allegations before the court can be grouped into the following four key issues:
1. Failure to manage fuel loads;
2. Failure to attack the fire on 8 January;
3. With respect to one plaintiff, taking water from the dam and thereby leaving him
vulnerable; and
4. Failure to warn of the impending fire storm.
1.
2.
FAILURE TO MANAGE FUEL LOADS AND
FAILURE TO ATTACK THE FIRE ON 8 JANUARY
In dealing with both of these claims, the judge will have to decide whether or not these
government agencies owed a legal duty of care to the plaintiffs. The bulk of legal authority
would suggest that agencies like the Rural Fire Service are not established to bestow an
individual benefit, and it would be inconsistent with their obligation to take action for the
community to hold them liable for individual losses, even if it can be shown that different
decisions may have lead to different outcomes.
But the authority is not all one way. A duty of care can be established where an agency is
expected to have a significant degree of control over a risk and that control is to be exercised
for the benefit of identified or identifiable individuals or groups.1 In this case the court will
have to consider whether:
… only an organised, trained and equipped service such as the Rural Fire Service
could have any prospect of averting danger from a serious bushfire.
And whether:
The vulnerability of the prospective victims is self-evident, particularly if they are or may be
assumed to lack the resources to protect themselves.2
Even if the plaintiff was vulnerable, it does not follow that a government agency, established
to provide a community good, should be liable to an individual. Acting in the community
good may require hard decisions. Fire brigades may well have to decide that some properties
cannot be defended, that their resources are better utilised elsewhere. Courts are wary to
review the decisions of those who Parliament has specifically empowered to act and who are
vested with very broad powers and decision making responsibilities. Judicial review, by way
1
2
Pyrenees Shire Council v Day (1998) 192 CLR 330.
New South Wales v West [2008] ACTA 14, [26] and [27].
of a negligence action, will not be allowed if that would be inconsistent with the statute or
impede the ability of decision makers to act. The Canberra court will have to decide if this is
the type of case where it would be inappropriate to hold that, in the circumstances, the
defendants owed a duty of care. If that is the decision then, regardless of their losses, the
plaintiffs will fail.
Even if the judge finds that there was a duty of care, he will have to consider whether or not
the decisions that were made were ‘reasonable’ and whether an alternative decision, such as
to commit fire crews overnight, would have made a difference to the eventual outcome.
None of these issues will be easy for the Courts are warned not to judge the matter with
hindsight. The Coroner, looking into the fires in New South Wales, put it this way:
… a judgement call had to be made … on the available information. … The decisions that
were made … must be examined in the light of what was known then and not what is now
known as having taken place on the 18th January.
We are all wiser with the benefit of hindsight, but that is not the test. ...3
It follows that this part of the case will be very hard for the plaintiffs to win, but if they do it
will have implications for how fires are managed into the future. If a service can be liable for
the destruction caused by a fire that they did not set (these fires were caused by lightning)
then the balance between firefighter safety and keeping resources in reserve will have to be
weighed in favour of strangers whose property may or may not be affected by a fire.
3.
TAKING WATER FROM THE DAM AND THEREBY LEAVING A PLAINTIFF
VULNERABLE
English case law has held that fire brigades are not under a duty to respond to fire calls and,
further, that they do not owe a duty of care even if they commence fighting the fire.4
Notwithstanding this, there is a duty not to make the situation worse or increase the danger.
In the English case, the fire authority was liable when they turned off the sprinklers that were
controlling a fire in a building before they located the seat of the fire. As a result the fire that
3
4
Carl Milovanovich, Coronial Inquiry into the Circumstances of the Fire(s) in the Bridabella Range in
January, 2003 (NSW Coroners Court, 2003), 14-15. He went onto say “The decision to contain the
McIntyre’s Hut fire was in my view, having regard to all the circumstances the correct decision at the
time. The fact that the fire was contained for the best part of 10 days would suggest that the strategy
was working.”
Capital & Counties Plc v Hampshire County Council [1997] 2 All ER 865, 878 and 886.
was being controlled by the automatic system was allowed to develop in a way that it would
have not had the sprinklers been left to their own devices and the building was destroyed.5
One plaintiff argues that on 12 January the NSW Rural Fire Service directed fire fighting
helicopters to take water from his dam for the purpose of fighting the fire. He alleges he had
pumps and a sprinkler system to take water from the dam to protect his house, but he moved
the pumps so that he could take water from the river to refill the dam. He asked the RFS to
resupply him with pumps and 130 metres of hose6 but this was not done. As a result, when
the fire entered his property he was unable to use the sprinkler system to protect the
homestead.7
From the plaintiff’s point of view this would put his case in a similar category to the Capital
and Counties decision. The allegation is that the Rural Fire Service did make the situation
worse; had they not attended with their helicopters and taken his water as they did, he would
have been less vulnerable as he could have taken steps to protect his own home. His
vulnerability was increased by the action of the fire service and that would be solid ground
for imposing a duty on the service to take steps to assist him with asset protection.
If taking water from a dam leads to a duty to then protect that property that will impact upon
the decision of the fire service to fight a fire where they think it can best be fought. If the
service is liable to Mr West because of their decision to take water, then in future fires the
incident controller will be faced with one of two decisions if they think the fire can be
stopped. Consider the following picture:
5
6
7
For a similar factual scenario, see Christopher Webster, Record of Investigation into a Fire at the Myer
Store at 98-108 Liverpool Street, Hobart, on 22 September 2007 (Magistrates Court of Tasmania,
2009).
Amended Statement of Claim filed on behalf of Mr and Mrs West in West v NSW (SC 10 of 2006), 22
May 2009, [17A].
Ibid, [18A] and [18B]
Assume the fire is moving south. The incident controller has determined that the line marked
as ‘the defensive line’ represents the best place to control the fire and that if they can contain
the fire there, both properties will be saved. To fight the fire on that line, however, they must
take the water from the dam on Property B, water that the property owner has to supply
firefighting sprinklers on the home. On the understanding of the law at present, the fire
service owes no duty of care to the owner of either property A or B so the incident controller
can take the action that he or she thinks is going to do the most good, but if they are
overwhelmed; there is no liability to either property owner. It is that view that is being
challenged in the Court.
If, in this case, the plaintiff is successful, a future incident controller will face the following
dilemma:
1. If they take the water and contain the fire on the defensive line, all is good.
2. If they take the water and fail to contain the fire, both properties A and B will be lost
and there may be liability to the owner of property B for taking the water and
increasing their vulnerability to fire.
3. If they don’t take the water Property A will be lost, but there is no duty of care to the
owner of Property A so no liability. The owners of Property B may or may not be
able to use their water to protect their own assets. If they succeed well and good, if
they do not then the result will be both properties are lost. In these circumstances
however the fire service would also owe no duty to the owner of Property B as they
neither started the fire nor increased the homeowners vulnerability.
From a legal perspective the low risk option appears to be do nothing, and leave both
property owners to their own fortune but that is not what fire services are for, nor is it why
people join their volunteer fire brigade. Further the Parliaments have expressly provided that
the brigades can take water when required.8 Where the Parliament has given the power it
must be expected that they intended it to be used. If the properties are lost the owners may
well claim that there was a failure by the brigades to do what they are empowered to do and
to take water to fight the fire where they believed it could be stopped. Liability for taking
unsuccessful action intended to advance the common good may encourage fire agencies to
take no action at all.
4.
FAILURE TO WARN OF THE IMPENDING FIRE STORM.
The parties in urban Canberra allege there was a failure to warn of the impending fire storm.9
In an action for negligence the plaintiff has to show that the defendant failed to act as the
‘reasonable’ defendant, in this case, the reasonable fire service. Courts warn that
circumstances must be judged from the point of view of the defendant at the time a decision
was made, but equally Courts and inquiries have for many years now identified that a failure
to issue warnings has contributed to loss and damage. At some point judges will expect
defendants to have learned those lessons and will at some point, hold that with the acquired
wisdom from years of experience, the reasonable fire service will have systems in place to
allow appropriate warnings to be given, and that failure to do so is negligent. Whether this is
such a case remains to be seen.
8
9
Rural Fires Act 1997 (NSW) s 26 and by the Emergencies Act 2004 (ACT) s 34(1)(j).
See also, Maria Doogan, The Canberra Firestorm: Inquests and Inquiry into Four Deaths and Four
Fires between 8 and 18 January 2003, Volume II (ACT Coroners Court, 2006), 43-180.
THE STATE OF THE LITIGATION
When it started there were some 3000 named plaintiffs though most of these were plaintiffs
in name only. The real plaintiffs were NRMA, Suncorp Metway and QBE seeking to recover
money that they paid out on insurance polices, and a number of uninsured plaintiffs. Over
time the NRMA and Suncorp have pulled out and QBE are proceeding against NSW only.
Recently some more plaintiffs have withdrawn.
The plaintiffs that are left are either so deeply committed that they can’t afford to withdraw,
and hope to get at least some victory to avoid having to pay all the defendant’s costs, or they
are genuinely committed to their action and believe that the law, or right, or hopefully both
are on their sides. Presumably it is uncomfortable to see other plaintiffs withdrawing but at
the end of the day none of that will sway the judge. He won’t be persuaded that the case has
no merit simply because a number of parties have withdrawn so the legal issues and the
significance of the case remain, whether there is one plaintiff or 100.
THE PRECEDENT VALUE
The implications of this case will extend beyond this case and will have ramifications for all
government agencies, such as the police, customs, the State and Territory Emergency
Services and all providers of public goods. For the defendants the stakes are very high, and
the law is not clear. It is my opinion that should they lose at trial, the defendants would want
to fight the result, if necessary all the way to the High Court, to get a definitive ruling of if
and when, they owe a duty of care, and what the law expects from them in future events. If
that is the case, this matter will not be resolved for many years.
CONCLUSION
Litigation arising from the 2003 Canberra firestorm began in the ACT Supreme Court in
2010. The Court must consider vital legal questions that will have implications for the future
responses by fire agencies. Although the trial court will provide initial answers, I expect a
final answer will need to be given by the High Court of Australia and that may take a few
more years to resolve.