Judges say s.128 Rural Fires Act authorises predictably fatal acts & omissions

Is the preventable firestorm crisis what NSW Parliament intended when it passed the Rural Fires Act? S.128 of the act protects NSW Government, its bushfire service and its Commissioner from liability for an act or omission. Recent judgements state s.128 authorises, justifies & excuses unnecessarily dangerous acts and omissions performed without due care and diligence. Judges also found s.128 removes duty of care to landholders.

From the Canberra Times - Court dismisses landholders' appeal over 2003 Canberra bushfire

October 31, 2014

Michael Inman

Courts reporter for The Canberra Times.

Appeal rejected: Brindabella land owner Wayne West outside court after an earlier hearing.

Appeal rejected: Brindabella land owner Wayne West outside court after an earlier hearing. Photo: Jeffrey Chan

A Canberra court has dismissed an appeal by landholders fighting for compensation after they were burnt out by the 2003 Canberra bushfire disaster.

But Brindabella landowner Wayne West would not rule out a High Court challenge.

Speaking outside court after the judgment, Mr West said he had been "devastated" by the decision.

Mr West said a High Court bid would be considered, but his legal team would need to read the decision in full first.

"We'll be looking at our options, [it] will take probably another week to read [today's] decision … to see what future direction we can take.""We will read the decision … and look at our future direction," he said.

Mr West also thanked all those who had provided support since 2003.

Friday's decision closes another chapter in the marathon 2003 bushfire lawsuit – the largest single piece of civil litigation in the territory's history.

The inferno ripped through Canberra's south-western suburbs on January 18, 2003, killing four people, injuring 435 injured, and destroying 487 homes and 23 commercial and government buildings. 

In December, 2012, an ACT Supreme Court judge found NSW had adopted an "inadequate and defective strategy" to fight the fires.

But former Chief Justice Terence Higgins found NSW was not legally liable to pay compensation.

The judge found faults with the fire authorities' strategy, including the decision not to fight the McIntyre's Hut fire at Baldy Range at first light on January 9, and the failure to backburn along the Goodradigbee River.

But former Justice Higgins found that, although NSW would have been liable at common law, it was protected from liability by section 128 of the Rural Fires Act.

The case then went to ACT Court of Appeal, where both the landholders and NSW challenged the decision.

The appeal was heard over nine days in May and June and the decision was reserved.

The Court of Appeal on Friday found that NSW could not be sued because the Rural Fires Act protected it from liability.

Chief Justice Helen Murrell, in handing down the decision on Friday, read a short summary to the court.

"All members of the court held that NSW had proved that it was protected from civil liability by section 128 of the Rural Fires Act, which provides a complete defence from liability for matters or things done or omitted to be done by a 'protected person or body' 'for the purpose of executing any provision … of (the) Act or any other Act'.

"For this reason alone, the appeals had to be dismissed."

The court also found that NSW did not owe land holders or Canberrans a duty of care.

"If the first duty of care was owed, the evidence did not establish any lack of reasonable care by the incident controllers in not directly attacking the spot fire on the Baldy Range on the morning after the fires ignited or in not clearing and back-burning vegetation along the length of the Goodradigbee River," Justice Murrell said.

"[The judges] also held that the evidence did not establish that the alleged breaches of the first duty of care caused the harm which the plaintiffs suffered.

"In respect of the second duty of care, all members of the court held that if any such duty to warn the residents of Canberra existed, the evidence did not establish that the commissioner of the Rural Fire Service had acted in breach of that duty."

Correction: An earlier version of this story said the cross-appeal by NSW had been thrown out, too. This is not the case. The judges found NSW did not breach its duty of care.

From The Canberra Times- Bushfire litigants to cover some of NSW's costs for failed court case

Wayne West.

Wayne West. Photo: Karleen Minney

A group of people who lost their legal battle with NSW over its failure to control the 2003 bushfires before they devastated the ACT have been ordered to partially cover the state government's court costs.

A series of litigants took the ACT and NSW governments to court, claiming failures to properly fight the fires that eventually swept through the city on January 18, 2003.

The fires tore through the south-western suburbs of Canberra, killing four people, and destroying almost 500 homes.

Landowners and other individuals took the NSW Government to court over its liability for the fires, claiming the Rural Fire Service and the NSW National Parks and Wildlife Service were negligent in the days leading up to the disaster.

At the same time, others sued the ACT Government, forming the largest single piece of civil litigation in the territory's history.

The litigants battling the ACT Government settled out of court last year, but the court case against NSW continued until a judgment was handed down in the ACT Supreme Court in December last year.

In that judgment, Chief Justice Terence Higgins found NSW had embraced an "inadequate and defective strategy" in fighting the fires, but was not legally required to pay compensation.

To prove negligence under NSW law, the plaintiffs needed to show the conduct of NSW firefighters was unreasonable.

Despite identifying failures in the decision not to fight the McIntyre's Hut fire at Baldy Range at first light on January 9, and the failure to back-burn along the Goodradigbee River, Chief Justice Higgins said there was no evidence to suggest the RFS had failed to act in good faith.

The matter came back before Chief Justice Higgins on June 28 to decide who would pay the costs for the lengthy court proceedings.

The issue of costs - which would typically go in favour of the NSW Government as the successful party - was complicated by a number of factors.

Chief Justice Higgins said it would be unfair to make the remaining parties - landholders Wayne West and Lesley West, and a group of 30 people represented by insurer QBE - to pay for all court costs, when many other plaintiffs who had been involved in the proceedings had since settled out of court.

Chief Justice Higgins also found the amount of costs the plaintiffs should pay was reduced, because they had been partially successfully in proving NSW's liability for negligence.

"In that context, it is fair to observe that the plaintiffs were successful in persuading the court that NSW was negligent," Chief Justice Higgins wrote in an order for costs published on Wednesday.

The court also found that the plaintiffs should not bear any of the costs relating to the proceedings against the ACT Government, which were settled out of court.

The amount the Wests owed was also largely reduced because they were only concerned with one issue: the escape of fire across the Goodradigbee River.

"Even that issue was one shared with all other plaintiffs," Chief Justice Higgins wrote.

"It would be unfair for them to have to bear the entire burden of costs, even on that one issue."

The QBE plaintiffs were ordered to pay 50 per cent of the NSW Government's costs on a party and party basis. Those costs do not include those borne in the proceedings against the ACT.

Chief Justice Higgins said the West landholders should be liable to contribute 5 per cent to the QBE plaintiffs to cover the legal proceedings concerned with the escape of fire from the Goodradigbee River.