Emergency services had no duty to warn on bushfire evacuation, court told” is the heading of an article that appeared in the Melbourne newspaper, The Age, on March 8 (and thank you to my colleague Blythe McLennan from RMIT University, for bringing this to my attention).

The issue of whether or not the emergency services have a duty to warn is unclear and untested.  It was believed that this would be a crucial issue in the litigation from the 2003 Canberra fires but, as the issues were resolved, and in particular the case against the ACT was settled, that matter was not discussed in the judgement.

In Warragamba Winery v NSW the court found no duty to warn but, more importantly, if a warning had been issued it could not have been specific and there was no evidence it would have been heard or made a difference.  That fire occurred in 2001, in the days before smart phone apps, Facebook and Twitter so the world is a very different place now so that finding may be of little relevance in 2013 or to the law in 2009 when the Black Saturday fires occurred.

It was a finding of the Royal Commission into the Victorian fires that there was no legal obligation upon anyone to issue warnings and that lead to the recommendation that an obligation needed to be put in place.  That is now the case with Fire Services Commissioner Act 2010 (Vic) s 24 (supported by the Country Fire Authority Act 1958 s 50B, the Metropolitan Fire Brigades Act 1958 s 32AA and the Forests Act 1958 s 62AA (applying to the Department of Sustainability and Environment)).  At the 2011 Emergency Media and Public Affairs Conference I presented a paper on “The emerging legal issue of failure to warn”.  That paper dealt with the legal duty to warn and whether these statutory changes would allow a person to sue for failure to warn.  That paper was published in The Australian Journal of Emergency Management Volume 27, No. 1, February 2012 and you can access it online if you want to read the technical details.

The litigation over the 2009 fires has to consider the issue based on the before those changes were put in place.  It will be interesting to see if that remains a ‘live’ issue and how the judge ultimately deals with it.

Michael Eburn

14 March 2013.