M. Eburn

Litigation from the 2005 Lower Eyre Peninsula (“Wangarry”) fires continues

In Fire, litigation, Negligence on October 22, 2013 at 6:04 pm

These fires impacted the Lower Eyre Peninsula in 2005. A group of plaintiffs have commenced an action against the owner of the car that was identified as the source of ignition and the South Australian Country Fire Service (the CFS). In court, the CFS applied to have the case struck out as having no possible chance of success (see Proude v Visic And Ors (NO 4) [2013] SASC 154).

An ‘strike out’ action is difficult. The court has not heard any evidence at this stage so the argument is something like “even if you accept everything the plaintiff says in their ‘pleadings’, even if they could prove all that they allege, they would still lose”. Courts are unwilling to dismiss a case without giving the parties the chance to put their evidence and their arguments. It is not surprising, therefore, that the CFS was not successful. In the discussion that follows I summarise what I see as the key arguments and ones that will be of most interest to the emergency services, but please understand that this is a simplification of his honour’s reasoning that goes for some 39 pages and 135 paragraphs (the references in square brackets are to paragraph numbers).

The gist of the CFS argument was that they do not and could not be found to owe a duty of care to individuals in the circumstances. This argument is consistent with extensive authority from the UK and Australia and most recently decisions such as Stuart-Kirkland Veenstra (2009) 237 CLR 215 in the High Court and Warragamba Winery Pty Ltd v New South Wales (No 9) [2012] NSWSC in the NSW Supreme Court. On the other hand, deciding whether or not there is a duty of care is very complex. It requires consideration of a list of ‘salient features’ (that in Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258 went from (a)-(q)). When considering statutory authorities, such as the CFS it is also important to have regard to the statute and ask whether it was intended to give individuals a right to sue if the authority was negligent, or whether that would be inconsistent with the provisions or intention of the Act (Graham Barclay Oyster Pty Ltd v Ryan (2002) 211 CLR 540.)

One interesting argument was that the Country Fires Act authorised various officers to do things, and to take action to control fires, but did not actually authorise the CFS so the CFS had no control over the fires, hazard or response (see [45]). Whilst this was an attempt to have the matter struck out, and it even if successful it would not stop the CFS being liable (if anyone was liable) for the acts of CFS members, it is, in my view, an ‘unattractive’ argument. I would think the CFS would want to say that the actions of its officers were actions of the CFS – the alternative is that the plaintiffs would have to sue the CFS members even if it was still the CFS actually running the case and wearing any liability.

Justice Blue did not accept the argument. He said (at [60]):

The CFS’s contention is too superficial… the Act established a clearly hierarchical organisational structure. Officers and members of the CFS … are subject to supervision and direction by the incident controller and ultimately by the chief officer and the board. It is self‑evident that, to be able to efficiently fight fires, it is essential that the CFS have a hierarchical organisational structure with a clear chain of demand from the board and chief officer downwards.
At the fire front, the exercise of coercive powers to direct civilians, enter land, commandeer water and materials, direct movements etc, is exercised by individual officers and members, but those officers and members are themselves under the overall supervision and control of the CFS as a body corporate by its board and chief officer.

Those officers are the CFS and are exercising their powers subject to the direction, and on behalf of the CFS.

The CFS also argued that they could only owe a duty not to make the situation worse, and none of the plaintiff’s argued that the CFS by its acts or omissions compounded the threat caused by the fire. Their argument was that the CFS failed to exercise its various powers to control or effectively combat the fire or protect assets. The judge agreed that the law sees a difference between acts and omissions, and that generally speaking there is no liability for omissions unless there is a duty to Act. But having said that the court had to consider that the plaintiff may be able to bring their case into those categories where a duty can arise to take positive steps to respond to a risk or hazard. Given this was an application to strike out the case, without hearing evidence, it would be premature to dismiss the case without allowing the plaintiff the opportunity to call evidence and to make their case why a duty of care was owed in the circumstances that existed.

Another essential feature in deciding whether or not there is a duty of care is the issue of ‘control’. If the defendant is in ‘control’ of the hazard then they are more likely to have a duty to exercise that control to protect others. The CFS argued that, unsurprisingly, they were not ‘in control’ of the fire. They were however in control of the response (particularly given s 66 which prohibited people forming their own fire fighting brigades without the approval of the CFS). Remembering again that this was not a trial of the facts, that is this case was not deciding if the CFS was liable, only whether the plaintiff’s should be allowed to proceed with their case, the judge said that even if some fires were beyond the CFS’ control, not all of them were. Whilst the lack of control may mean there is no duty to respond to all fires, it does not follow that “… once the CFS has deployed to fight a specific fire in specific circumstances, the CFS would not owe a duty of care to exercise reasonable care to attempt to extinguish and control that fire” ([70]).

In any event the plaintiffs alleged that the CFS, if it had acted more efficiently could in fact have extinguished the fire. That is of course debatable but that is the point; if it is debateable then the judge has to hear evidence on the matter, and even if the fire did at some stage grow to unmanageable proportions, it does not mean that early in its life, it could not have been controlled. Given that allegation the judge would have to hear evidence to determine whether in his view the fire could have been controlled, and so it was appropriate to allow the case to proceed so that the plaintiffs could bring whatever evidence they had.

Another aspect of the plaintiff’s case was an allegation of ‘breach of statutory duty’ that is that the relevant statute law required the CFS to do things that they did not do, or did not reasonably do, and that caused harm. Liability for breach of statutory duty can only be established if it is consistent with the tenor of the Act and if it appears that the legislature intended the statute to give rise to a duty that would lead to damages if breached. At [115]-[116] Blue J said:

The statutory duties pleaded by Mr Visic encompass duties at a very high level which would be owed, if to anyone, to all members of the public in South Australia. They encompass a general duty to prevent, control and suppress fires in the country in South Australia in an effective and efficient way. They encompass duties to manage and train CFS members, manage material resources, plan the nature and extent of resources required, prepare fire fighting plans, and establish an efficient communication system. If such statutory duties are owed, they were capable of being breached months or years before 10 January 2005.

To the extent that the Act imposes obligations of this sort, it cannot be said that they are imposed “for the protection or benefit of a particular class of persons” for the purpose of a cause of action of breach of statutory duty coming into existence. Nor could it be said that, on its proper construction, the Act intends to provide a ground of civil liability whenever breach of such obligations might cause injury or damage. It is not tenable for Mr Visic to contend that these very general statutory responsibilities imposed by the Act are capable of giving rise to a cause of action for damages for breach of statutory duty.

The CFS argued that the case would have to fail because of section 64 of the Country Fires Act 1988 (SA) which provides that “A person incurs no civil or criminal liability for an honest act or omission in the exercise or performance, or purported exercise or performance, of a power or function under this Act.” The plaintiffs argued that the reference to ‘person’ was limited to a natural person not an entity such as the CFS. Further it was up to the CFS to prove, as the section gives a defence, that the acts or omissions of the CFS staff were ‘honest’. Again this was a preliminary strike out application so evidence had not been heard and the CFS did not attempt to lead evidence on the issue, so as with the plaintiff’s claims, the judge could not actually determine that matter without letting the matter go to trial and the CFS to call what evidence it wanted to make that case.

At the conclusion of the matter the action for negligence was allowed to continue, but the action for breach of statutory duty was struck out. This is consistent with the decision arising out of the 2009 Victorian fires and discussed at “ “.

Remember that this decision is not saying that the CFS is or will be liable; only that the case against the CFS is not so obviously doomed to fail it should be struck out without allowing the plaintiffs, and defendant, to call their evidence and to argue why, in the circumstances, the CFS was, or was not, negligent. The case has a long way to go before any final result is achieved.

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