Suing the Australian fire brigades: a question of duty Dr Michael Eburn Barrister, and Senior Fellow, ANU College of Law and Fenner School of Environment and Society.

An action in negligence requires A duty of care; A breach of that duty – conduct that falls below the standard of a reasonable person in the defendant’s position; and The breach must cause the plaintiff’s damage.

Three cases from 2012 Warragamba Winery v NSW (fire in 2001), Myer Stores v State Fire Commission (Tasmania) (fire in 2007) and Electro Optics Systems & West v NSW (Canberra 2003)

But first Capital and Counties PLC v Hampshire County Council [1997] 2 All ER 865 “In our judgment the fire brigade are not under a common law duty to answer the call for help and are not under a duty to take care to do so. If therefore they fail to turn up, or fail to turn up in time because they have carelessly misunderstood the message, get lost on the way or run into a tree, they are not liable.” ([25]).

Warragamba Winery v NSW [2012] NSWSC 701(26 June 2012)

Warragamba Winery No duty; but If there was, there was no breach; but If there was, it didn’t cause the damage; and If it did, the RFS was protected by the Rural Fires Act 1997 (NSW) s 128.

Myer Stores Ltd v State Fire Commission [2012] TASSC 54 (24 August 2012)

Myer Stores “At least in relation to property damage, legislation in this State since 1920 had reflected a policy that the financial burden of unfortunate operational decisions should be borne by insurers, or by the uninsured. That seems possibly to have been a quid pro quo for the State providing fire-fighting services which, in times long past, were provided by insurance companies, and not at the expense of the public”. ([41]).

Electro Optic Systems & West v State of New South Wales [2012] ACTSC 184 (17 December 2012)

West v NSW Only two allegations of negligence were made out failure to actually send crews to examine the fire on the 9th January’ and failure to prepare the Goodradigbee River bank to act as an effective fire break.

But there was no liability because of Civil Liability Act 2002 (NSW) s 43. NOT Rural Fires Act 1997 (NSW) s 128 (but that would have given a defence).

Warragamba and West The same fire authority and the same Act but: Walmsley JA found no duty of care Higgins CJ found there was a duty of care. The matter is the subject of an appeal to the ACT Court of Appeal.

Questions? Comments? Michael Eburn P: 6125 6424 E: michael.eburn@anu.edu.au W: http://law.anu.edu.au/staff/michael-eburn Blog: http://emergencylaw.wordpress.com/