In Electro Optic Systems Pty Ltd v State of New South Wales; West & Anor v State of New South Wales [2014] ACTCA 45 the ACT Court of Appeal has upheld the verdict in favour of NSW arising out of the 2003 Canberra bushfires.   The judgment extends for some 280 pages and my summary is 14 pages so  too long for a normal post here; rather I’ve uploaded that summary as a pdf file which you can access here:

For those that want to jump to the end, my conclusions are:

In Electro Optic Systems Pty Ltd v The State of New South Wales; West & West v The State of New South Wales [2012] ACTSC 184 Higgins CJ found:

  • That the state of NSW through the Rural Fire Service and National Parks and Wildlife Service owed the plaintiffs a duty of care;
  • The defendant via the Incident Controllers did not act as a reasonable fire service;
  • Their failure allowed the fire to spread and damaged the plaintiff’s property; but
  • The defendants were, however protected, by the operation of
    1. the Civil Liability Act 2002 (NSW) s 43; and
    2. the Rural Fires Act 1997(NSW) s 128.
  • The Rural Fire Service did not owe a duty to warn residents of the ACT regarding the fire; and
  • The Civil Liability Act 2002 (NSW) s 43A was not relevant as it had come into force after the date of the fires.

According to the ACT Court of Appeal Higgins CJ was wrong in nearly every respect.  He made findings of fact that were ‘inconsistent’ ([453]) with the evidence, he overlooked relevant law ([484]), his reasoning depended upon a ‘mischaracterisation of the case that was being put’ and he applied legal principles that had been rejected by the High Court as representing the law in Australia ([176]).

The court of appeal held:

  • That the state of NSW through the Rural Fire Service and National Parks and Wildlife Service did not owe the plaintiffs a duty of care;
  • The defendant via the Incident Controllers did act as a reasonable fire service;
  • Their failure, if there was one, was not the cause of the plaintiffs’ damage; but
  • If there had been negligence, the defendants would have been protected, by the operation of:
    1. the Civil Liability Act 2002 (NSW) s 43A; and
    2. the Rural Fires Act 1997(NSW) s 128.
  • The Rural Fire Service did not owe a duty to warn residents of the ACT regarding the fire; and
  • The Civil Liability Act 2002 (NSW) s 43 was not relevant as this was not a case involving an alleged breach of statutory duty.

The text in bold represent the two areas where the judges of appeal agreed with the trial judge.

The two incident controllers involved in this case had to make calls in a very short space of time.  They had to make decisions in the uncertain world of firefighting where events are fast paced, information difficult to obtain and where the outcomes can and did mean the difference between life and death and significant losses.

Higgins CJ heard the longest, most complex case in ACT history.  There is no doubt that hearing all that evidence, trying to understand the arguments of counsel and working through masses of documents must be very difficult.  Like the incident controller, a judge may be offered advice and assistance from others but the ultimate decisions are his and his alone.  Having said that, these cases were filed three years after the fires but not resolved until 10 years after the fires.  During that time the judge heard 80 days of evidence and reserved his decision from November 2011 (Louis Andrews and Megan Doherty, ‘Fire litigation ends for ACT’, Canberra Times, September 20, 2012) to 17 December 2012 – unlike the incident controllers who had hours to make their decision, Higgins CJ had over a year!  Higgins CJ found that the actions of those incident controllers were not ‘reasonable’.  The ACT Court of Appeal, in turn, found that Higgins CJ was wrong in nearly every respect.

Read the full analysis of the Court of Appeal’s decision here: