Legal consequences from the 2003 Canberra fires Michael Eburn Senior Research Fellow ANU College of Law and Fenner School of Environment and Society Darwin, 10 September 2010

Differences between a Royal Commission and litigation Burnside QC: “In ordinary litigation … the objective is to ascertain what happened, attribute blame and lead to consequential adjustment of rights.”

Royal CommissionLitigation The scope of the inquiry is determined by: The decision on what evidence to call is made by: The role of the tribunal is: The hearings result in: The government in the terms of reference The Commission To investigate and report on the issues raised in the terms of reference. Recommendations that may or may not be adopted. The Commission can recommend changes in law and practice. The parties To adjudicate the issues that are in dispute. If the parties reach agreement the case will settle without a final result. A decision that is binding on the parties. The rulings reflect the way the law is, not the way it should be.

Issues in the Canberra litigation 1.Failure to manage fuel loads; 2.Failure to attack the fire on 8 January; 3.With respect to one plaintiff, taking water from his dam and leaving him vulnerable; 4.Failure to warn Canberra residents of the coming fire.

1 & 2: Fuel loads & no direct attack on 8 January Do the fire agencies have to consider how their decisions could impact upon an individual? Is there a ‘duty of care’? Legal authorities suggest ‘no’ but it’s not all one way. Duty arises when the plaintiff is vulnerable and the defendant can control the risk.

In this case… The court will have to consider whether it is correct that: “… only an organised, trained and equipped service such as the Rural Fire Service could have any prospect of averting danger from a serious bushfire.” And whether: “The vulnerability of the prospective victims is self- evident, particularly if they are or may be assumed to lack the resources to protect themselves.”

But … vulnerability isn’t everything Agencies established for the common good don’t owe a duty to individuals. Are fire brigades established to protect private or public interests? Judiciary wont review ‘policy’ decisions.

Even if there is a duty of care The duty is to act reasonably in the circumstances. The NSW Coroner said: “… a judgement call had to be made … on the available information. … The decisions that were made … must be examined in the light of what was known then and not what is now known as having taken place on the 18th January. We are all wiser with the benefit of hindsight, but that is not the test.”

For this court… Was this a ‘policy’ decision? A decision not to fight the fire because of OHS risk or simply a failure to comply with SOPs? Is it just ‘wise with hindsight’ or was there really no ‘judgment call’? Compare the analysis of the ACT Coroner with that of the NSW Coroner. Would it have made a difference?

3. Taking water from the dam English case law: Fire brigades are under no obligation to come and no obligation to put the fire out if they do; but they must not make the situation worse. One plaintiff alleges: the NSW RFS took water from his dam; he provided pumps and hoses to replace the water; he asked the RFS for pumps and hoses to reconnect his defences; they did not supply them; the fire came; his house was lost.

Fire Defensive line Property A Property B N Take the water and contain the fire on the defensive line, all is good. Take the water and fail to contain the fire, both properties A and B will be lost but there may be liability to the owner of property B. Don’t take the water: Property A is lost, but no duty of care. The owners of Property B can use their water, they may or may not save the property but there is no duty to them as no action increased vulnerability. The low, legal risk option appears to be ‘do nothing’

4. Failure to warn A recurring theme – see Coroner’s inquest into the 1983 Ash Wednesday fires; 2009 Victorian Bushfires Royal Commission. Vulnerability and control: Vulnerability: people can’t act without information. Control: not over the fire but over the information. Eventually agencies will be expected to learn the lessons of the past. The litigation will test this – it may be the time the court says ‘a reasonable agency must, by now, know of the need to warn’. If not this case, the next one?

State of the Litigation Hearings began in 2009 with over 3000 named plaintiffs but it was really three major ones (NRMA, QBE, Suncorp Metway) and some others. Insurers have pulled out against the ACT; QBE proceeding against NSW only. Others are uninsured plaintiffs, perhaps with nothing more to lose. Matter was due to end this year, but now adjourned until April There is still a long way to go!

Will it be a precedent? Decision of a trial judge does not establish a precedent. If the decision is all about the facts it’s not a precedent. The judge’s interpretation of the law may be subject to an appeal to: The ACT Court of Appeal; and then, perhaps, The High Court of Australia.

Questions? Thank you for your attention. Michael Eburn ANU College of Law and Fenner School of Environment and Society E: P: (02)