In an earlier post (Christmas 2001 Bushfire litigation finalised) I noted that this litigation had been finalised albeit with a 700+ page judgement. What follows is my summary of the reasons of Walmsley AJ (Acting Justice Walmsley) in Warragamba Winery Pty Ltd v State of New South Wales  NSWSC 701.
There were 15 plaintiffs. They alleged that the Rural Fire Service was negligent for failing to combat the Mt Hall fire when it commenced on Christmas Eve 2001, arguing that if they had deployed ground fire fighters and helicopters, they would have succeeded in extinguishing the fire. They based this on the fact that another fire broke out in the area and was extinguished, but with respect to the Mt Hall fire the RFS did not deploy resources to the fire and as a result it grew and burned in to the urban areas on Christmas day.
In the alternative the plaintiff’s also argued that the RFS, the Sydney Catchment Authority and the National Parks and Wildlife Service were negligent for failing to issue warnings to the community. Had those warnings been issued, so it was argued, the plaintiffs could have taken steps to protect their properties and prevent their ultimate destruction.
Walmsely AJ found against the plaintiff’s on all grounds.
With respect to fighting the fire, he held that there was no legal obligation or duty owed to the plaintiffs. The RFS is established to provide fire fighting services for the common good, not for individual benefit. The RFS had to provide fire fighting across the state and on that day there were fires all across the state and providing a much more direct threat to different communities. If the RFS owed a duty to these plaintiffs then it owed similar duties to other homeowners across the state. The RFS had to make decisions about how to allocate scarce resources, how to manage and protect its own staff, and how to make decisions for the greatest good. All of these factors move against holding that they owe a duty to any identifiable individual that would, in turn allow a person to sue the RFS for failing to extinguish a fire. This principle is consistent with the English common law cases and the writing of academics (including myself) and so his honour found there was no legal duty, that could be enforced by individuals. Absent a duty of care, there could be no liability.
If there was a duty of care, His Honour would have found no negligence. The fire service was entitled to make decisions on how to allocate resources. The decision not to send in fire fighters was reasonable given the risk to their safety and the failure to deploy helicopters for fire bombing was also reasonable given the resources available and the other fires burning in the state. Even if the service had allocated more resources to the fire, by the time they could have been brought to bear on the fire, it would have grown in intensity and been uncontrollable. The decision to let this fire run, and to focus on fires that were posing a more direct threat was reasonable in the circumstances, which included a realisation that these properties were at risk but it was believed that the risk would not come to fruition for another couple of days. That assessment was not negligent even though, in fact, the fire burned into the affected area sooner than anticipated.
Even if there had been a duty and there had been negligence, the RFS would not have been liable because of the provisions in the RFS Act that protected officers and the Crown for actions done in good faith. This was the first time that this section has been really tested in the context of fire fighting (as opposed to say traffic accidents). His Honour had no doubt that each of the officers in the IMT and the Commissioner were honestly trying to do their duty under the Act. His Honour said ‘Had negligence been found, this would have been a clear case for the application of s 128 to the alleged acts and omissions of the NPWS and the RFS.’
The defendants could also rely on the Civil Liability Act 2002 (NSW) s 43A which provides that an agency exercising special statutory powers cannot be liable unless there action is so unreasonable that no other agency would believe that they were using their powers to achieve the statutory obligations. His Honour found that even if the decisions were negligent they were not so unreasonable to meet that test and so again, liability could not be established.
It followed that on every legal point, the defendants won. In short:
- There was no duty
- If there had been a duty there was no negligence
- If there had been a duty and negligence the defendants were protected by the Rural Fires Act 1997 (NSW) s 128 and the Civil Liability Act 2002 (NSW) s 43.
In case his honour was wrong he considered the plaintiffs’ claims that had they received warnings they would have taken steps to protect their properties. His Honour rejected those claims going through their evidence in detail noting that none of the plaintiffs gave any explanation how they would have heard the warnings, that their claims of what they would have done was ‘wise with hindsight’ but unlikely to be true. Although he did not use the language of shared responsibility, his honour did look at the preparations that people had done prior to the fire and noted where properties had poor fire hygiene with bush and flammable material too close to the home thereby increasing the risk. He rejected all the claims and the plaintiffs were ordered to pay the defendants costs.
Is it a precedent?
This case is the decision of a single judge and so does not form a binding legal precedent. The conclusions were based on the facts which will necessarily be different in different cases so this case does not determine how other cases will be decided. To be a legal precedent a decision of a higher court, such as the Court of Appeal is required. I have not heard that the plaintiffs are intending to appeal so that this may be the end of the matter.
Having said that the case should give some reassurance to fire fighters and fire agencies. This is only the second case where fire agencies have been sued over their actions in responding to a unplanned wildfire, the other was Gardner v the Northern Territory, and in both cases the fire service have been found to be not liable. People often believe that others sue at the drop of the hat, suing is very difficult, time consuming (in this case 11 years) and expensive. People do not sue whenever they think they might and the fact that this is only the second case may reassure fire fighters that they do not get sued often, or at all.
Failure to warn
One word of caution relates to failure to warn. In 2001 the RFS warned the community by issue press releases and holding press conferences and hoping the media would pick them up. There was no Emergency Alert, no facebook and no twitter. The court find that the defendants did what they could reasonably do to warn the community and that the plaintiffs would not have heard the warnings even if they had been issued (in part because radio station 2WS was only broadcasting music on that day). The world has changed since then and no agency could take comfort from this decision that the conduct in 2001 would be sufficient in 2012. Further his honour did not address, as a seperate issue, whether there is a duty to issue a warning. Following the inquest into the 2003 Canberra fires, and the 2009 Victorian Bushfires Royal Commission as well as legislative changes since that inquiry, that duty may exist as a seperate issue to the duty to fight fires.
There are two other cases before the courts that raise similar issues. They are the litigation arising from the Canberra fires of 2003 and the Myer fire in Hobart in 2007. It will be interesting to see how the courts deal with those claims and between them they will being to add clarity to the law affecting the Australian fire services.
19 July 2012.