Dr Michael EburnBarrister, andSenior Fellow, ANU College of Law andFenner School of Environment and Society.

Three cases from 2012

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

14

65% of claims

27% of claims

5% of claims

136

50

11

36

20

3

0

20

40

60

80

100

120

140

160

180

200

All fires MVA Not otherwise classified

Claims not paid

Claims paid

65% of all claims

27% of all claims

5% of all claims

Fire claims

17

54

45

20

9

12

11

4

0

10

20

30

40

50

60

70

Back Burn HR Burn Firefighting/operations Fire not otherwiseclassifed

Claims not paid

Claims paid

Type of damage

30

166

3

55

0

50

100

150

200

250

Personal Injury Property damage

Claims not paidClaims paid

Where the claimant was amember of the RFS

21

42

0

1

1

0

5

10

15

20

25

Personal injury Property damage whilst on duty Property damage not related toRFS status

Claims not paid

Claims paid

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 EburnP: 6125 6424E: michael.eburn@anu.edu.auW: http://law.anu.edu.au/staff/michael-eburnBlog: http://emergencylaw.wordpress.com/