Yesterday (10 May 2011) Justice Forrest, in the Supreme Court of Victoria, handed down two judgements in the litigation arising out of the Black Saturday bushfires of February 2009.

Matthews v SPI Electricity (No 1) [2011] VSC 167 involved an application to strike out the class action brought by Ms Matthews on behalf of all people who suffered injury or loss due to the Kilmore East fire.   The application was based on irregularities in the way the proceedings were commenced and the plaintiffs identified.  The Court refused to strike the matter out but instead made orders to ‘regularise’ the proceedings that is to correct the procedural defects with certain other orders as to costs and interest so that the parties were neither advantaged, nor disadvantaged, by the irregularities.  This judgement was about court practice and procedure and the role of the lawyers in instigating the litigation but did not deal with any significant legal issues and certainly not with issues regarding the roles and responsibilities of the emergency services and will not be discussed further.

Matthews v SPI Electricity (No 2) [2011] VSC 168 was a very different case.  This was an application by the State of Victoria to dismiss claims made alleging breach of statutory duty and negligence by members of Victoria Police, DSE and the CFA.

The original case against SPI Electricity alleges negligence in they way the operated and maintained electricity distribution assets.  SPI joined, as a defendant, the State of Victoria alleging that part of the loss or damage was due to a failure by police to perform their duties under the Emergency Management Act 1996 (Vic) and the associated disaster plan (DISPLAN).   Ms Matthews, as plaintiff, then also joined the action against Victoria making the same allegations against the state defendants and in particular, the members of Victoria Police.

The case against the police was based on two different torts; one was ‘breach of statutory duty’ and the other was ‘negligence’.  Although related these two torts are not the same.  To succeed in a claim for breach of statutory duty, the plaintiff has to show that the defendant was obliged (not merely permitted) to do something; that they failed to do what they were required to do; as a result the plaintiff suffered damage; and most importantly, that the Parliament, in imposing the duty, intended that the Act would give an injured individual a private right to sue for damages.     The parliament does not usually spell out its intention in such clear language so the intention must be inferred from the structure of the Act.  Where, for example, an Act provides for a remedy, for example that failure to do what is required is to be punished by a fine, then that would suggest that an alternative remedy, the payment of damages, was not intended.  Equally where an Act is designed to establish a scheme for the benefit of the community as a whole, rather than an identified class of people, it is unlikely that the parliament intended that individuals would have a private right to sue.

Forrest J had to consider these issues in relation to the Emergency Management Act 1996 (Vic).  He noted that the Act was designed to establish coordination and response arrangements across Victoria for all types of hazards.   The Act, and DISPLAN, were intended to ensure that ‘key players know who is in charge at particular levels and what their responsibilities are.’ [73]. He said (at [76]):

Nothing in these provisions even vaguely implies that the legislature intended to impose an obligation upon particular persons or organisations identified in DISPLAN, (and particularly police officers) which would give rise to a private right – to the contrary, I think that purpose is to provide those bodies with the knowledge and understanding as to who is responsible for what particular activity in the event of an emergency.

Forrest J formed the view that, by passing the Act, the Parliament in no way intended to give individuals a private right to sue if they believed that a person, in this case a police officer, had failed to perform a task or duty set out in either the Act or DISPLAN.  Accordingly the action based on breach of statutory duty was dismissed.

The alternative action was based on the common law of negligence.  In simple terms that requires the plaintiff to prove that the defendant owed a duty of care to the plaintiff, that they failed to reasonably perform that duty and that as a result the plaintiff suffered damage.  There is a clear overlap with an action for breach of statutory duty as the presence of a statutory obligation may suggest a duty of care in the sense that a reasonable person would do what a statute required him or her to do.  The issue is however more complex, questions of whether or not there is a common law duty of care turns on questions of

  • Was the plaintiff vulnerable to harm?
  • Did the defendant know of that vulnerability?
  • What could either the defendant or plaintiff do to protect the plaintiff from harm?
  • What other conflicting responsibilities did the defendant have?
  • What resources did the defendant have?
  • What would the hypothetical reasonable person, in the same situation have done?
  • What is the nature of the relationship between the plaintiff and the defendant?

In Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649, Allsop P set out a list of factors, from (a) to (q) that had to be considered when deciding whether or not a statutory authority like Victoria Police or the CFA owed a common law duty of care to an injured individual.

The court in this case was not asked to, and could not decide whether or not the plaintiff could prove that there was duty of care and that there had been negligence.  On an application to strike out the proceedings the Court had to decide whether or not the case had ‘no real prospect of success’ (Civil Procedure Act 2010 (Vic) s 63).   Proceedings such as these are based on the ‘pleadings’ that is the documents filed in court, and not on any evidence as to the facts.  The judge was mindful of warnings from superior courts (including the High Court of Australia) that proceedings should only be ‘struck out’ when it was clear that the case could not proceed, otherwise plaintiffs would be denied the right to have their case heard and determined on all the relevant facts.  This is particularly relevant in an action for negligence when a determination of the legal issues (was there a duty? Was there a breach?) depends very much on the facts, that is what occurred.  This matter was complicated by the fact it is a class action and dismissing the matter now would deny many hundreds, if not thousands of affected people, the right to show how the facts that applied to them on that day, would affect the ultimate finding of whether or not there was a duty of care and whether or not there had been a breach of the duty.

The judge therefore found that it could not be said that there were no real prospects of success and so the matter should proceed to trial to allow the parties to bring evidence of the relevant facts and to allow the trial court to determine the matter based on applying the law to the facts.

In the circumstances the case was allowed to continue but only on the basis that the plaintiff can allege common law negligence, but not that a failure (if any) to do something required by either the Emergency Management Act 1996 (Vic) or DISPLAN gives rise to a right to damages.

Michael Eburn

11 May 2011.