Dr Michael EburnBarrister, andSenior Fellow, ANU College of Law andFenner School of Environment and Society.
Three cases from 2012
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; andThe breach must cause the plaintiff’s damage.
Three cases from 2012
Warragamba Winery v NSW(fire in 2001),Myer Stores vState Fire Commission(Tasmania)(fire in 2007) andElectroOptics Systems & West v NSW(Canberra 2003)
But first
Capital and Counties PLC v Hampshire County Council[1997] 2 All ER865“Inour 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 vNSW[2012] NSWSC701(26 June 2012)
Warragamba Winery
No duty; butIf there was, there was no breach; butIf there was, it didn’t cause the damage; andIf it did, the RFS was protected by theRural Fires Act 1997(NSW) s 128.
Myer Stores Ltd v State Fire Commission[2012] TASSC54 (24 August 2012)
Myer Stores
“Atleast 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 thepublic”. ([41]).
Electro Optic Systems & West v State of New South Wales[2012] ACTSC184(17 December 2012)
West v NSW
Only two allegations of negligence were made outfailureto actually send crews to examine the fire on the 9thJanuary’andfailureto prepare theGoodradigbeeRiver bank to act as an effective fire break.
But there was no liability because of
CivilLiability Act 2002(NSW)s 43.NOTRural Fires Act 1997(NSW) s 128 (but thatwouldhave given a defence).
WarragambaandWest
The same fire authority and the sameAct but:WalmsleyJA foundnoduty of careHiggins CJ foundthere wasa duty of care.The matter is the subject of an appeal to the ACT Court of Appeal.
But … between9/9/89 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 otherwise
classifed
Claims not paid
Claims paid
Type of damage
30
166
3
55
0
50
100
150
200
250
Personal Injury
Property damage
Claims not paid
Claims paid
Where the claimant was amember of the RFS
21
4
2
0
1
1
0
5
10
15
20
25
Personal injury
Property damage whilst on duty
Property damage not related to
RFS status
Claims not paid
Claims paid
Claims settled
Payments were made in 203 (77% of) cases.No payment in 60 (23% of) cases.Whydoes the insurer make payments in 77% ofcases?
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 (Lobseyv Care(1983) 1 MVR1 excepted).Vicarious liabilitywillapply 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/
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