Electro Optic Systems Pty Ltd v State of New South Wales
[2014] ACTCA 45
•31 October 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Electro Optic Systems Pty Ltd v State of New South Wales; West & Anor v State of New South Wales |
Citation: | [2014] ACTCA 45 |
Hearing Dates: | 26, 27, 28, 29, 30 May 2014, 2, 3, 4 and 5 June 2014 |
DecisionDate: | 31 October 2014 |
Before: | Murrell CJ, Jagot and Katzmann JJ |
Decision: | 1. The appeals be dismissed. 2. The appellants pay the respondent’s costs of the appeals as agreed or taxed. 3. Insofar as the cross-appeals are concerned, the plaintiffs pay the respondent’s costs of the hearing below as agreed or taxed. 4. Orders 2 and/or 3 above be set aside in the event that any party applies to vary or set aside the order or orders within 14 days of the date of this order. |
Category: | Principal Judgment |
Catchwords: | NEGLIGENCE – Justiciability of claims – duty of care – bush fire ignited by lightning strike in national park – two employees of State of New South Wales were appointed successive incident controllers pursuant to bush fire management plan made under Rural Fires Act 1997 (NSW) and by delegation pursuant to s 44 of the Act – care, control and management of the park vested in Director-General of National Parks and Wildlife pursuant to National Parks and Wildlife Act 1974 (NSW) – whether incident controllers owed duty of care to property owners to prevent harm caused by spread of bush fire – whether State was “occupier” pursuant to Rural Fires Act – whether any such duty owed by reason of occupation NEGLIGENCE – Duty to warn – statements made by Commissioner of New South Wales Rural Fire Service during media interviews aired in Australian Capital Territory and statements made by Rural Fire Service in public media releases in respect of bush fire in New South Wales – whether New South Wales Rural Fire Service assumed duty to warn residents of Australian Capital Territory of risk posed by bush fire NEGLIGENCE – Civil Liability Act 2002 (NSW) s 43A – whether alleged breaches of duty found by primary judge were based on incident controllers’ exercise of or failure to exercise “special statutory power” STATUTES – Rural Fires Act 1997 (NSW) s 63 – whether alleged breaches found by primary judge constituted contraventions of s 63 – whether obligation to take steps to “minimise the danger of the spread of a bush fire” applies to a fire that is burning at the time of the alleged omission STATUTES – Rural Fires Act 1997 (NSW) s 128 conferred immunity upon “protected person” for a “matter or thing done or omitted to be done” by the person “if the matter or thing was done in good faith for the purpose of executing any provision” of the Act or any other Act – whether s 128 conferred immunity upon incident controllers in respect of alleged breaches of duty found by primary judge – whether incident controller “protected person” – whether breaches found by primary judge were acts or omissions under s 128 – whether good faith requirement in s 128 applies to omissions – meaning of “good faith” – whether acts or omissions in question were “for the purpose of executing any provision” of an Act WORDS AND PHRASES – “matter or thing done or omitted to be done … in good faith for the purpose of executing any provision … of this or any other Act” |
Legislation Cited: | Bush Fires Act 1949 (NSW) ss 22, 48 Civil Liability Act 2002 (NSW) ss 5B, 5C, 41, 42, 43, 43A, 46 Wilderness Act 1987 (NSW) |
Cases Cited: | Agar v Hyde (2000) 201 CLR 552 Al Saudi Banque v Clark Pixley [1990] Ch 313 Wentworth Securities Ltd v Jones [1980] AC 74 |
Texts Cited: | Bushfires in Australia (RH Luke and AG McArthur, 1978) |
Parties: | Electro Optic Systems Pty Ltd (Appellant) Wayne Karl West (First Appellant) State of New South Wales (Respondent) |
Representation: | Counsel Ms R Graycar (Appellant) (Electro Optic Systems Pty Ltd) Mr B Toomey QC (First and Second Appellant) (Wayne Karl West and Lesley Anne West) Mr J Maconachie QC with Mr C Erskine SC and Mr D Mallon (Respondent) (State of New South Wales) |
| Solicitors A R Conolly and Company (Appellant) (Electro Optic Systems Pty Ltd) Collaery Lawyers (First and Second Appellant) (Wayne Karl West and Lesley Anne West) | |
File Number(s): | ACTCA 6 of 2013; ACTCA 12 of 2013 |
Decisions under | Court: Supreme Court Before: Higgins CJ Date of Decision: 17 December 2012; 7 August 2013 Case Title: Electro Optic Systems Pty Ltd v New South Wales; Electro Optic Systems Pty Ltd v New South Wales Citation: [2012] ACTSC 184; [2013] ACTSC 155 |
MURRELL CJ:
The judgments of Jagot and Katzmann JJ set out the facts clearly and comprehensively.
In her judgment, Jagot J addresses the issues raised by both the appeal and the cross-appeal. With one exception, I agree with her Honour’s reasons.
The exception concerns s 128(1) of the Rural Fires Act 1997 (NSW), which provides:
A matter or thing done or omitted to be done by a protected person or body does not, if the matter or thing was done in good faith for the purpose of executing any provision (other than section 33) of this or any other Act, subject such person personally, or the Crown, to any action, liability, claim or demand.
In relation to the conduct of the incident controllers for whom New South Wales was vicariously liable, Jagot J characterises the two alleged errors (the failure to directly attack the Baldy spot fire on the morning of 9 January and the failure to clear and back-burn along the Goodradigbee River before 16 January) as the relevant “matters or things” and says that they were “omitted to be done” because each was a failure to act. On the other hand, for the purposes of s 128(1), Katzmann J characterises the overall fire fighting strategy as the relevant “matter or thing”; it was a “matter or thing” that was done, not one that was “omitted to be done”.
I agree with the characterisation adopted by Katzmann J.
When applying s 128(1), the first question is: what is the matter or thing that was done (or omitted to be done) and to which liability would or may otherwise attach?
At the trial, the plaintiffs’ case was that the incident controllers were negligent because they had adopted a flawed strategy for containment of the fires within the Park when they should have adopted the alternative “Fenwick strategy”. As Katzmann J said at [581]:
The better view is that the negligence the primary judge found involved adopting a strategy which did not incorporate (the two alleged matters) or was flawed in these two respects.
In substance, the case was both argued and decided on the basis that New South Wales through the incident controllers implemented a flawed fire fighting strategy. Consequently, in relation to s 128(1), it is the overall fire fighting strategy that is the relevant “matter or thing”, and the two alleged errors should be viewed as aspects of that strategy. The implementation of the strategy is a “matter or thing” that was “done” rather than one that was “omitted to be done”.
Otherwise, in her judgment Katzmann J has taken a slightly different approach to that of Jagot J and has emphasised different considerations. I have no substantial disagreement with anything that has fallen from Katzmann J.
I agree with the proposed orders.
I certify that the preceding paragraphs numbered one to ten ([1]-[10]) are a true copy of the Reasons for Judgment herein of her Honour Chief Justice Murrell.
Associate:
Date: 31 October 2014
JAGOT J:
1. THE PROCEEDINGS
In January 2003, bush fires in the Brindabella Ranges burned out of control in New South Wales (NSW) and the Australian Capital Territory (the ACT). Four people were killed, hundreds injured, and many properties were destroyed or damaged. The fires started during a major electrical storm which occurred on 8 January 2003. The fire in NSW was ignited by a lightning strike in the Brindabella National Park (the Park), east of the Goodradigbee River at a place known as McIntyres Hut (the McIntyres Hut fire).
Wayne and Lesley West (the West plaintiffs or the Wests) owned a rural property in NSW known as Wyora Station. Their property was located about 2.7 kilometres south-west of McIntyres Hut, near to the western side of the Goodradigbee River which forms the western boundary of the Park. The Wests’ property was burned out on 18 January 2003 by the McIntyres Hut fire burning across the Goodradigbee River.
Approximately 29 other property owners, who were insured by QBE Insurance (Australia) Limited (the QBE plaintiffs), suffered damage from the McIntyres Hut fire burning across the eastern boundary of the Park into the ACT and to the western suburbs of Canberra. The properties of all QBE plaintiffs are situated in the ACT.
In separate proceedings brought under the Crown Proceedings Act 1988 (NSW), the Wests and the QBE plaintiffs (together the plaintiffs) sued NSW for damages. Section 5 of that Act permits those who consider they have a just claim or demand against the Crown in right of New South Wales to bring civil proceedings against the Crown under the title “State of New South Wales”. “Crown” is defined in s 3 of the Act to include the Government of NSW.
Insofar as now relevant, NSW was sued on the basis that two people, one an employee of the National Parks and Wildlife Service (NPWS) and the other a member of the Rural Fire Service (RFS), through whom NSW was vicariously liable, breached a duty to take reasonable care in the exercise of statutory powers conferred upon them under the Rural Fires Act 1997 (NSW) (the Rural Fires Act) and National Parks and Wildlife Act 1974 (NSW) (NPW Act) in conceiving and implementing a plan to control the McIntyres Hut fire, by reason of which the plaintiffs suffered damage to their properties. The two people in question are Julie Crawford (the NPWS employee), who became the incident controller for the fire in NSW from the afternoon of 8 January until 1.00 pm on 9 January 2003, and Bruce Arthur (the RFS member), who was appointed incident controller from 1.00 pm on 9 January 2003 and remained the incident controller for the duration.
The QBE plaintiffs, but not the Wests, sued NSW on an additional basis, claiming that Philip Koperberg, the Commissioner of the RFS, breached a duty to warn residents of the ACT about the threat posed by the McIntyres Hut fire, which had divided into several fires before reaching the suburbs of Canberra.
The proceedings before the primary judge were heard concurrently. All plaintiffs failed. The primary judge held that, although NSW would have been liable to the plaintiffs at common law, it was protected from liability by s 128 of the Rural Fires Act and s 43 of the Civil Liability Act 2002 (NSW) (the Civil Liability Act). Accordingly, on 17 December 2012 the primary judge entered judgment in favour of NSW (Electro Optic Systems Pty Ltd v New South Wales (2012) 273 FLR 304; [2012] ACTSC 184). The primary judge’s reasons for judgment published on 17 December 2012 are referred to below as the principal reasons (or as J in the quotes taken from the submissions of the parties).
Electro Optic Systems Pty Ltd and the West plaintiffs appealed against this decision. The appeal is intended to bind all of the QBE plantiffs. NSW filed a notice of contention in each appeal contending that the primary judge’s order should be confirmed on other grounds.
On 7 August 2013, the primary judge made orders for costs. He ordered that the QBE plaintiffs pay 50% of the costs of NSW and that the West plaintiffs contribute 5% of the 50% to the QBE plaintiffs (Electro Optic Systems Pty Ltd v New South Wales [2013] ACTSC 155 (the costs judgment)). NSW, by cross-appeal, appeals against these orders.
All matters were heard together. These reasons for judgment relate to the appeal, the notice of contention and the cross-appeal.
The parties agreed that 31 issues had to be resolved. Those issues are set out in Schedule 1. The issues may be grouped as follows:
(1)whether the plaintiffs’ claims are justiciable (issues 1 and 2);
(2)whether NSW, through Ms Crawford and Mr Arthur, owed the plaintiffs a duty of care (issues 3 and 4), including whether the primary judge erred in respect of s 42 of the Civil Liability Act (issues 13 and 14);
(3)if NSW owed the plaintiffs a duty of care through Ms Crawford and Mr Arthur, the nature, scope and content of that duty (issues 5 to 8);
(4)if NSW owed the plaintiffs a duty of care through Ms Crawford and Mr Arthur, whether Ms Crawford and Mr Arthur breached that duty to any plaintiff (issues 9 and 10);
(5)whether the harm the plaintiffs suffered was caused by any breach of the alleged duty of care by Ms Crawford and Mr Arthur (issues 11 and 12);
(6)whether NSW, through Mr Koperberg, was subject to any duty to warn the plaintiffs and, if so, whether Mr Koperberg breached that duty (issues 19 to 21);
(7)whether the primary judge erred in respect of ss 43 and 43A of the Civil Liability Act (issues 15 and 18);
(8)whether the primary judge erred in respect of s 128 of the Rural Fires Act (issues 16 and 17); and
(9)whether the primary judge erred in exercising his discretion in respect of costs (issues 22 to 31).
Unless otherwise indicated, all references are to the form of the legislation as in force during January 2003, with the exception of relevant provisions of the Civil Liability Act which apply, as amended, with retrospective operation (discussed below).
2. THE CONTEXT
The primary judge’s principal reasons assume knowledge of aspects of the factual context which need to be understood from the outset.
2.1 Brindabella National Park
The Park is part of a natural area of some 21,000 hectares located 10 to 15 km west of Canberra. The Park incorporates 12,609 hectares of the Brindabella Range at the northern limit of the Australian Alps. The Park is bounded on the south-east by the border between the ACT and NSW. The ACT Government manages the Uriarra pine forest which is located within 1 km of the Park’s south-eastern boundary. Generally, the ranges in the Park run in a north-west/south-east direction or north-east/south-west direction. The terrain is mountainous and steep. In summer, there are often strong winds from the north-west which are associated with low humidity. Winds from other directions are not as strong and are associated with more moist conditions. Localised winds are greatly influenced by the topography of the Park.
Maps in Schedule 2 show some of the important areas in question.
On the first map in Schedule 2, note the relationship between the Park, other national parks and State forests (all of which might be inferred to be vegetated areas at risk from bush fires) and the ACT.
On the second map in Schedule 2, note the Goodradigbee River to the west (forming the western boundary of the Park), Mount Coree to the south-east (from which observations of the McIntyres Hut fire were made), the various trails, and the Baldy Range to the east. The red patch to the east of the Goodradigbee River on that map depicts the location of the McIntyres Hut fire as at 8.00 pm on the evening of the first day of the fire, 8 January 2003.
On the third map in Schedule 2, note Uriarra to the east-north-east of Mt Coree which is surrounded on the east, south and west by the ACT pine forest plantation immediately east of the Park, and Mount Stromlo which is to the south-east of the Park and immediately adjacent to the south-western Canberra suburbs of Duffy, Chapman and Kambah.
2.2 Bush fires generally
The danger of bush fires is measured in Australia according to the McArthur Forest Fire Danger Rating System which uses a number of variables (including soil moisture deficiency, air temperature, relative humidity, wind speed and recent rainfall) to produce an index (Fire Danger Index or FDI) which is used by fire fighting authorities to predict likely fire behaviour, especially fire spread, and the relative difficulty in suppressing fires. Another relevant indicator is the drought index which estimates soil dryness based on daily rainfall and maximum temperatures measured over time.
According to Phillip Cheney, a research scientist at the CSIRO who gave evidence before the primary judge, two important generalisations can be made about fire behaviour. At low wind speeds, the direction of the fire spread is dominated by slope. Fires spread rapidly upslope even against the wind. In contrast, fire will spread relatively slowly downslope. However, at high wind speeds, the wind dominates fire spread and the process of spotting (fire brands being carried ahead of the main fire to start new fires) allows fire to spread rapidly across the topography and overcomes the retarding effect of a negative slope (in the direction of the wind). Further, temperature and humidity exhibit a diurnal fluctuation; temperature reaches its maximum at about 3.00 pm and its minimum at about 6.00 am. Humidity mirrors this change.
Roger Fenwick, another expert who gave evidence, also explained the general behaviour of bush fires, emphasising the importance of slope, the amount of available fuel, and weather conditions as determinants of the intensity of a bush fire. As Mr Fenwick described it:
For maximum fire spread and intensity, given a uniform fuel load, ignite a fire at the bottom of a slope in mid-afternoon with the wind blowing upslope. Conversely, to create a fire most likely to self-extinguish, light it late in the evening at the top of a hill on the windward side of a natural break such as a road, so that its only available spread direction is downhill against the wind.
Once a bush fire has started there are well-known options for attempting to control and suppress the fire, each of which has advantages and disadvantages and may be more or less suitable depending on the circumstances. Basically, available methods comprise direct suppression, parallel attack, and indirect attack (which includes remote indirect attack). Mr Cheney described remote indirect attack as a variation of indirect attack where existing trails are used as control or containment lines. In other words, the object is to contain the fire within a defined area rather than to suppress or extinguish it within that area. It is a method “becoming more common for controlling fires in national parks where access roads are few”. Mr Cheney said that the success of indirect attack:
depends on the speed that burning out can be conducted around the perimeter and whether the large area of unburnt fuel within the containment lines can be be burnt out before the onset of severe weather conditions. If unburnt fuel remains inside the containment line there is always the potential for the fire to burn with sufficient intensity to throw spot fires well beyond the lines.
Mr Cheney also noted that the normal cycle of summer weather is that a frontal passage passes across southern Australia every seven days. To ensure that the area within containment lines is completely burnt out, an indirect attack operation must be completed two days before the onset of extreme weather. Mr Fenwick gave evidence to the same effect; in summer, a weekly weather cycle means that there are generally seven days between one extreme fire danger day and another.
Available techniques to deal with bush fires include using hand tools to construct fire lines (lines of bare earth sufficiently wide to prevent the passage of the fire across the lines), direct attack with water, the use of bulldozers to construct fire lines (larger bulldozers being necessary to move heavy logged material or in rugged country), aerial attack by water bombing, back-burning and burning out. Mr Cheney explained back-burning as setting a fire ahead and downwind of an advancing fire front in order to create a break of burnt ground wide enough to stop the fire and minimise the risk of spotting ahead. Mr Cheney said back-burning is a risky operation and, as a general rule of thumb, it will not succeed if the head of the fire cannot be controlled directly. Burning out is setting fire from a control line to burn out the fuel between the control line and the fire edge. In these proceedings, this distinction was often disregarded and burning out (that is, burning back from a containment line) was commonly referred to as back-burning.
Mr Fenwick gave similar explanations. He said:
Spotovers are mostly caused by smouldering bark etc on tree trunks and upper branches blowing or falling over the extinguished perimeter (with or without a trail) and landing in dry, unburnt fuel. Short-distance spotting is generally the result of small bark components from the lower parts of the trunks of rough-barked trees being blown laterally by surface wind. Only moderate fire intensity is needed to ignite this material. Long-distance spots are usually caused by ribbon-bark type material being lifted vertically in a convection column and then transported horizontally by wind well above canopy level. That requires fairly high-intensity fire, which in turn requires a relatively high fuel load.
Mr Fenwick also described the phenomenon of a fire whirlwind. He said:
A line of fire cresting a hill, or the intersection at right angles of two lines of fire, are situations likely to create a fire whirlwind, especially during unstable summer conditions. Once a fire whirlwind – like a willy-willy, but energised by the combustion within itself of flammable material – becomes established, it perpetuates itself until the flame is extinguished – by travelling over a body of water, or an extensive distance over bare ground absolutely devoid of any fine flammable material. They tend to wander around, generally in the direction of the wind, and light a zig-zag line of fire ahead of the main fire front.
Mr Fenwick explained the concepts of the front and flanks of a fire, and the effect of wind change. He said:
At the head of a major fire burning in forest fuels, where the greatest rate of energy release is occurring as the bulk of the fine fuels are consumed, a convection column is established. This is visible as the plume of smoke rising more or less vertically. It has a well-defined front and sides …
The flanks (sides of a fire) are capable of becoming fronts if the wind direction changes, and then moving a frontal speed instead of (relatively) creeping along as do flanks.
… while the head (front) of most bushfires travels at a reasonably constant speed under a constant set of other conditions, the flank or side of a fire which becomes the new head in the event of a 90° change in wind direction will travel at about 3 times the speed of the previous head, at least for the 1st hour or 2.
Mr Fenwick also described wind behaviour in areas of ridges and valleys. He said:
The area within a valley bottom more or less at right angles to the wind-flow is subject to turbulence and swirly winds, likely to blow in virtually any direction …
It is also well known that as part of the general turbulence, and a channelling effect of ridge and valleys aligned at an angle to the wind, wind flow along the valley can occur in either direction.
Mr Fenwick described the Goodradigbee River valley as an area likely to be subject to turbulence and erratic winds of this kind. He said:
The same swirly winds (turbulence) will assist the passage of embers from one bank to the other, regardless of the nominal ambient wind direction. In addition, when a local wind gust blows embers from the east bank over to the western side of the river, it is also blowing the resultant fire uphill – which will cause a very rapid rate of spread. …
The standard text Bushfires in Australia (RH Luke and AG McArthur, 1978) (Luke and McArthur) explained that, while fires will occasionally spread outwards at an equal rate in all directions so as to assume a circular form, “most fires are influenced by wind and by changes in topography or fuel and become irregular or elongated in shape” (p 4). Further (also at p 4):
The zone where a fire is making greatest progress is described as the head or the main head, but if considerable action is taking place at several points simultaneously a fire may be said to have several heads or fingers or to be fingering out. The tail, back or backing fire is that portion which is burning back slowly, usually against the wind, but sometimes downhill or into a less flammable fuel type. The flanks or side fires move at right angles to the direction of the head fire, but at a lower rate than the head fire. When fire is used against fire, the action is described as back-firing or back-burning and is subject to the reassurance that it has been preceded by the preparation of adequate firebreaks.
Luke and McArthur also explained that (pp 71-72):
The first stage in fire development is a period of initial build-up, during which the behaviour of the fire is dominated by environmental conditions and the suppression task is relatively easy provided fire fighters arrive early enough.
The second stage is one of transition, when forces engendered within the fire begin to affect fire behaviour significantly. This can involve convection activity, downdraught winds or greatly increased combustion rates.
In a third and final stage, which can be termed the peak stage, all or most of the forces which can be released by the fire exert their influence. If fuel and weather conditions are ideal for rapid combustion, a conflagration may result. …
Luke and McArthur described spotting in these terms (pp 77-78):
In the initial and transitional stages of a forest fire, burning embers may be thrown a few metres ahead of the moving flame front and the rate of fire spread may be increased slightly. Such is no longer the case when burning embers are transported and start spot fires well ahead of the main fire front, thus increasing fire intensity and convection column development. After a period of acceleration both the rate of spread of the moving flame front and the spotting distance may seem to stabilise but strategy based thereon may be thrown into sudden disarray when sudden increases in wind velocity, slope or fuel load initiate long distance spotting and take rates of spread and other fire behaviour characteristics into an entirely new dimension.
Because of the high rates of spread which can sometimes be exhibited by both forest and grass fires and the added complication of long distance spotting in forests or from isolated clumps of trees in grasslands, halting or slowing down the acceleration process during the early stages of a fire is basic to all fire suppression action.
Further, at p 96, they said:
A forest fire moving upslope with the wind tends to accelerate quite dramatically as it approaches the ridge top due to increased wind velocity and the possible influence of lower fuel moisture contents.
…
A forest fire burning in heavy fuels and moving upslope under the influence of a following wind will almost inevitably throw spot fires from the top of a ridge or knoll. The effect of slope in this instance is to convert what might be a reasonably low intensity fire burning on level ground to a fire of high intensity once it starts burning up a steep slope …
At p 102, Luke and McArthur said:
In a number of eucalypt fuel types, spotting distances far exceed those recorded in overseas literature. Distances of 30 km or more have been authenticated in Australia. …
Many eucalypt fuel types are not only large accumulators of fine fuel on the ground, but they also carry a very inflammable bark on the stem of the tree and in the upper branches. …
And, at pp 106-107, they said:
Short to medium distance spotting up to 8 km may be entirely a wind-driven process in which the heavier fibrous bark flakes provide the spotting medium. Spotting distances beyond 8-10 km and up to 30 km demand that streamers of candlebark be transported to a height of at least 3000-4000 m in a convection column and then carried forward by strong upper winds. …
The direction in which burning embers will be blown is always a matter of grave concern to the fire boss and in most cases the direction will be different to ground level wind direction.
At pp 110-111, Luke and McArthur make the point that:
The spread, intensity and shape characteristics of large fires defy simple description. Any fire which remains uncontrolled for some days is likely to be subjected to considerable wind and other weather changes, fuel differences and topographic variations. Even minor variations are important as these can determine the direction of head fire travel on any particular day. …
When large fires burn for a lengthy period the main concern is that weather conditions may deteriorate. Should a day of extreme fire danger develop, fires are likely to burn completely out of control and cover a very large area in high intensity runs.
…
[There is a] need for a highly developed initial attack system and the means of bringing in large numbers of men and equipment overnight if the initial attack fails during the first day, with the objective of establishing control before the onset of the next day's main burning period. The old concept of control by 10 a.m. the following morning is still very much applicable in present day fire control and is the only way of ensuring that a destructive large scale fire will not develop. This is especially important when extended drought periods have left the fuel in a desiccated condition.
2.3 The role of an incident controller
It is critical to understand the role and powers of an incident controller. Further consideration of the legislative scheme will be necessary but for present purposes it is sufficient to note that the Rural Fires Act (Divs 2 and 3 of Pt 3) requires the preparation of bush fire management plans for each rural fire district and other parts of the State not in a rural fire district for which a Bush Fire Management Committee (BFMC) has been constituted. The plans are to be prepared by the BFMC for that district or other area and comprise a plan of operations and a bush fire risk management plan respectively (s 52). The authority and responsibility for the constituting of BFMCs is vested in the Bush Fire Co-ordinating Committee (s 50) which is a statutory corporation constituted under s 46. The membership of the Bush Fire Co-ordinating Committee includes the Commissioner of the RFS and an officer of NPWS nominated by the Director-General (s 47(1)). In effect, a bush fire risk management plan focuses on controlling the risk of a bush fire pre-emptively, whereas a plan of operations focuses on fighting a fire once it has started. Specifically, by s 53 of the Rural Fires Act, a plan of operations must set out the procedures to be followed if “a bush fire breaks out in the rural fire district or other part of the State and assumes or is likely to assume such proportions as to be incapable of suppression by the fire fighting authority or authorities in that part of the State” or “the prevailing conditions are conducive to the outbreak of a bush fire likely to assume such proportions”. The Bush Fire Co-ordinating Committee has the responsibility for reviewing and adopting the draft bush fire management plans (ss 58 and 59), which are to be made publically available (s 62).
Every plan of operations in NSW, including that for the Park (the Yarrowlumla and Queanbeyan Districts Bush Fire Management Plan – Operations) (the plan of operations), provides for the appointment of an incident controller once a fire is notified. The reason for this is that all relevant agencies have adopted a common incident control system (or ICS) described as follows in the submissions of the QBE plaintiffs to the primary judge:
The ICS is the operating system of the Australian Inter-Service Incident Management System [AIIMS], and is one of five sub-systems of AIIMS[.] AIIMS was developed by the Australian Association of Rural Fire Authorities. The ICS is a structure of delegation to ensure that all vital management and information functions are adequately performed.
One of the stated benefits of AIIMS and ICS is to increase understanding and communication within and between agencies “through the acceptance and use of uniform terminology, procedures and incident organisational structures”.
…
Under the ICS, an IC [incident controller] was designated by the responsible agency to have overall management of the incident.
The Yarrowlumla and Queanbeyan Bush Fire Management Committee (the Bush Fire Management Committee), the RFS, the NSW Fire Brigade, the NPWS, NSW State Forests, and the ACT Emergency Services Bureau (ESB) were all signatories to the plan of operations. The plan of operations covered 2,968 sq km within a rural fire district of which 655 sq km were national parks, including the Park.
Importantly, the plan of operations provided that, subject to any appointment by the Commissioner under s 44 of the Rural Fires Act or by the Bush Fire Management Committee’s Operation Emergency Executive, the role of incident controller would be assumed by “the Officer-in-Charge of the first suppression agency on scene, unless relieved or replaced”. The plan also provided that:
The Incident Controller is charged with the overall fire co-ordination/control of the incident.
He/she will be responsible for the co-ordination of the firefighting activities of all involved organisations and strategic decisions such as:
· major task identification;
· suppression strategy;
· resource deployment;
· reinforcement of resources;
· co-ordination of the firefighting activities of all involved organisations.
Ms Crawford, as the officer-in-charge of NPWS (the first suppression agency on scene), became the first incident controller in accordance with this provision of the plan of operations. Mr Arthur became the second incident controller in accordance with an appointment under s 44 of the Rural Fires Act.
The Rural Fires Act provides for the plan of operations to be given effect in the event of a fire in various ways.
By s 38(2)(d) of the Rural Fires Act, a fire control officer for a district “must take or cause to be taken all necessary measures for suppressing fires in the rural fire district and protecting and saving life and property in case of fire”. In so doing, the fire control officer is subject to s 38(4) which provides that “[a] fire control officer may exercise a function referred to in subsection (2)(d) only if the fire control officer (and any member of the Service assisting the fire control officer in the exercise of the function) complies with the conditions (if any) imposed on the exercise of the function specified in any relevant bush fire management plan or other relevant plan of the authority responsible for the managed land of which the fire control officer is aware”. Mr Arthur was the fire control officer for the district.
Amongst other things, s 44(1) of the Rural Fires Act vests a power in the Commissioner, in certain circumstances, to take control of bush fire fighting operations, in effect, facilitating a co-ordinated approach to the fighting of large scale fires or fires which have or will become difficult to control. Section 44(3) of the Rural Fires Act provides that:
The Commissioner is not subject to the control and direction of the Bush Fire Co-ordinating Committee in exercising the Commissioner’s functions under this Division but must, in exercising those functions, take into consideration any relevant bush fire management plan and, in the case of managed land, any relevant plan of the authority responsible for the managed land of which the Commissioner is aware.
Section 55 of the Rural Fires Act provides that:
(1)A draft bush fire management plan may:
(a)include schemes for the exercise in the rural fire district or other part of the State to which it applies of functions conferred or imposed by this Act, and
(b)confer or impose functions on the Commissioner, the Commissioner of NSW Fire Brigades, the commissioner constituting the Forestry Commission, the Director-General of National Parks and Wildlife or any other person or body associated with the prevention, mitigation or suppression of bush fires in that part of the State.
Section 60(6) of the Rural Fires Act provides that:
A bush fire management plan communicated to a public authority to which it relates is to be adopted by that authority and, as far as practicable, carried into effect by the authority in the circumstances indicated by the plan.
“Public authority” is defined in the Dictionary to the Rural Fires Act as “any public or local authority constituted by or under an Act other than this Act” and thus would include NPWS, but not RFS.
This scheme of provisions reflects the objects of the Rural Fires Act; in particular, the object in s 3(b) which identifies that the legislation provides “for the co-ordination of bush fire fighting and bush fire prevention throughout the State”. The second reading speech for the Rural Fires Bill explained that the Bill was in response to the Senior Deputy State Coroner’s findings and recommendations about the 1993-1994 fires in which “over a period of 20 days, more than 800 individual fires raged across 800,000 hectares of land, threatening the urban fringe of Sydney as well as numerous towns and villages along the coastal plains and ranges of New South Wales”. The speech said that:
The bill will put in place a cohesive command structure for bush fire brigades, while preserving the best traditions of local autonomy, which are the hallmark of the volunteer bushfire fighting movement.
This was said to respond to the fact that:
The deputy coroner’s principal recommendation was that the Government should introduce a more cohesive and integrated command structure under the umbrella of a Rural Fire Service.
In the present case, as noted, the first suppression agency on the scene was NPWS. Ms Crawford, the Area Manager and delegate of the Director-General of National Parks and Wildlife (NPW) in respect of the Director-General’s functions concerning the Park, thus became the incident controller in accordance with the plan of operations. By s 55(1)(b) of the Rural Fires Act there was thus conferred on Ms Crawford as incident controller the function of co-ordinating the fire fighting activities of all involved organisations and the making of all strategic decisions. Ms Crawford (the NPWS being a public authority) was also bound by s 60(6) of the Rural Fires Act, as far as practicable, to carry into effect the plan of operations.
Mr Arthur, as the district fire control officer, was bound by the plan of operations under s 38(4) of the Rural Fires Act. The Commissioner of RFS exercised his powers under s 44 of the Rural Fires Act at 1.00 pm on 9 January 2003 at which time Mr Arthur was delegated the Commissioner’s functions and was appointed the incident controller (and Ms Crawford became the deputy incident controller). As such, and in accordance with the plan of operations, Mr Arthur became responsible for co-ordinating the fire fighting activities of all involved organisations and making all strategic decisions. As the delegate of the Commissioner, Mr Arthur was also subject to s 44(3) of that Act (in addition to having additional powers under s 45 that were not available to Ms Crawford, as discussed further below). Although not an issue in the appeals, it is apparent that in the event of any inconsistency between Mr Arthur’s obligations as district fire control officer under s 38(4) of the Rural Fires Act and as delegate of the Commissioner under s 44(3) of that Act, the latter would necessarily prevail.
3. THE PRIMARY JUDGE’S REASONS
3.1 Some key facts
3.1.1 General
The primary judge described the fires and some key undisputed facts at [1] to [71] of the principal reasons.
At [1] to [2] the primary judge said:
1. On the afternoon of 8 January 2003, a major electrical storm occurred across north-eastern Victoria, southern New South Wales (NSW) and the Australian Capital Territory (ACT). The accompanying lightning strikes ignited fires throughout the Brindabella Ranges, in both NSW and the ACT.
2. Relevantly, a fire commenced at a place known as McIntyres Hut (the McIntyres Hut fire) in NSW; and at places known as Bendora (the Bendora fire), Stockyard Spur (the Stockyard Spur fire), and Gingera (the Mount Gingera fire) in the Namadgi National Park (collectively “the Namadgi fires”) in the ACT. The fires rapidly increased in intensity, and on 18 January 2003, burnt into the south-western suburbs of Canberra (the Canberra Bushfires).
3.1.2 McIntyres Hut fire
McIntyres Hut is located in the Park. The Park is reserved as a national park under s 30A of the NPW Act. By ss 31 and 33 of that Act the Director-General of NPW has care, control and management of the Park. The NPW Act also constitutes the NPWS, which comprises the Director-General and the officers and employees wholly or principally engaged in the administration of the NPW Act, the Wilderness Act 1987 (NSW) or the Threatened Species Conservation Act 1995 (NSW).
At [6] the primary judge recorded that:
On the afternoon of 8 January 2003, multiple lightning strikes were recorded in the McIntyres Hut area within the Park, at a place known as Webbs Ridge. At about 4.06 pm, Mt Coree fire tower reported smoke in the area of the Park, which appeared to be coming from the McIntyres Hut area. Sometime after 5.10 pm, the McIntyres Hut fire was observed during an aerial reconnaissance as being approximately 200 hectares in size.
Ms Crawford, as Area Manager of NPWS at Queanbeyan, “assumed the role of Incident Controller (‘IC’) in accordance with the Rural Fires Act and the Yarrowlumla/Queanbeyan Districts Bushfire Management Committee Plan of Operations in respect of the McIntyres Hut fire” (at [7]).
At [8] the primary judge recorded that:
At or about 6.06 pm, Ms Crawford heard a radio call from Mt Coree Tower reporting smoke, which, when plotted, indicated fire in the vicinity of the Baldy Range. At or about this time, Mr Robert Hunt, the NPWS ranger overseeing the Park and the Bimberi Nature Reserve, reported to Ms Crawford that he could see smoke on Baldy Range. Noting that there were a “number of fires in the area”, Ms Crawford declined to dispatch crews to the Baldy Range fire on 8 January 2003.
McIntyres Hut, it should be noted, is in the western part of the Park not far from the Goodradigbee River. Baldy Range is in the north-eastern part of the Park about 5 km from McIntyres Hut. It is not in dispute that the fire at Baldy Range was a spot over from the McIntyres Hut fire.
Ms Crawford arranged an inter-agency meeting in respect of the fires. The meeting, held at the NPWS offices at Queanbeyan during the evening of 8 January was attended by “NPWS officers Mr Hunt, Ms Crawford, Mr Tony Fleming and Mr Scott Seymour; RFS officers Mr Arthur and Mr Jim Lomas; ACT Forest Officers Mr Neil Cooper and Mr Tony Bartlett; and ACT ESB [Emergency Services Bureau] Officers Mr Peter Lucas-Smith [Chief Fire Control Officer for the ACT] and Mr Rick McRae” (at [9]).
This inter-agency meeting confirmed Ms Crawford’s appointment as incident controller but agreed that steps should be taken to invoke the Commissioner’s powers under s 44 of the Rural Fires Act, a task which was delegated to Mr Arthur. The participants at the meeting also agreed that (at [11]):
the fire was beyond direct attack, and that the strategy for fighting the fire would be indirect attack. That involved, essentially, establishing “containment lines” some distance away from the fire edge, before burning out the fuel between the containment line and the fire, thereby halting the progression of the fire. …
During the meeting (at [12]):
Ms Crawford was informed that the fire at the Baldy Range had crossed the Baldy trail and that, consequently, the Baldy trail was lost as a containment line for the eastern side of the fire. Those at the meeting unanimously agreed to use Doctors Flat, Webbs Ridge and the Folly trails as the northern containment line, the 07 Powerline trail as the southern containment line, the Firebreak trail as the eastern containment line and the Goodradigbee River as the western control line. …
The area to be enclosed by the agreed containment lines was approximately 10,000 hectares. The plan was to establish those lines and then burn out the fuel within the containment area before the next bad weather day, which was anticipated to be within seven days (at [54] and [73]-[75]).
A sketch of the fire area prepared by Mr Fenwick is shown below.
The same information is represented on the second plan in Schedule 2.
The proposed western containment line, the Goodradigbee River, can be seen to the west on both plans. Note Webbs Ridge trail, which intersects the River near the southern edge of each plan, running briefly east, then north and generally parallel to the River, crossing the extension of Powerline trail in the south and the extension of Folly trail in the north, before turning north-east towards its terminus at Doctors Flat road near the northern edge of each plan (the various trails and roads are depicted as yellow lines on the second plan in Schedule 2). The land slopes steeply upwards from the River in the west towards Webbs Ridge, along which Webbs Ridge trail runs from Folly trail south towards the River. Powerline trail is the contorted line running east/west between the River and Two Sticks Road in the east. The red line on the second plan in Schedule 2 running west from Powerline trail to the River is a track that had to be constructed to join the existing trail to the River in order to create the southern containment line. It is undisputed that this construction was initially attempted by way of a rake hoe line (which proved impossible due to the steep slopes, apparently up to 35 degrees in this area), then with a D5 bulldozer (which also failed), and finally with a D8 bulldozer. Consequently, completion of this line took far longer than initially anticipated. The red line on the second plan in Schedule 2 running north/south between Two Sticks Road and Doctors Flat Road which goes through Dingo Dell is the eastern containment line, known as the Firebreak trail. It also required augmentation. Note the parallel yellow line running north/south to Baldy Range, which is the Baldy trail. The northern containment line comprised Doctors Flat Road, part of Webbs Ridge trail and Folly trail running to the River. The red lines between the River and Folly trail and between Doctors Flat Road and Webbs Ridge Trail show construction work which was necessary to create or augment parts of those trails so they were suitable for use as containment lines.
The second plan in Schedule 2 shows the extent of the McIntyres Hut fire at 8.00 pm on 8 January 2003. The plan does not show the spot-overs from the McIntyres Hut fire including that at Baldy Range up to 5 km away. Those spot-overs can be seen on the following plan.
As noted, it was agreed at the inter-agency meeting that it was appropriate to seek to invoke the powers of the Commissioner of the RFS under s 44(1) of the Rural Fires Act. That section provides that:
(1)The Commissioner is to take charge of bush fire fighting operations and bush fire prevention measures and to take such measures as the Commissioner considers necessary to control or suppress any bush fire in any part of the State if, in the opinion of the Commissioner:
(a)a bush fire has assumed or is likely to assume such proportions as to be incapable of control or suppression by the fire fighting authority or authorities in whose area or locality it is burning, or
(b)the prevailing conditions are conducive to the outbreak of a bush fire likely to assume such proportions, or
(c)a bush fire is not being effectively controlled or suppressed by the fire fighting authority or authorities in whose area or locality it is burning, or
(d)a bush fire is burning in a place that is not the responsibility of any fire fighting authority.
Section 44(2) provides that:
The Commissioner may delegate the Commissioner’s functions under this Division (other than this power of delegation) to an officer or member of a rural fire brigade, an officer or member of New South Wales Fire Brigades, officers of the Forestry Commission, officers of the National Parks and Wildlife Service or any other person.
Section 44(3) has been set out above. It requires the Commissioner to take into consideration any relevant bush fire management plan in exercising functions under ss 44 and 45.
Section 45 is the Commissioner’s power to give directions “in connection with the prevention, control or suppression of any bush fire in the area or locality in which the Commissioner has taken charge or is taking measures under” Div 1 of Pt 3 of the Rural Fires Act. By s 45(3) it is an offence not to comply with any such direction. By s 45(4), s 45 has effect “despite anything contained in this or any other Act to the contrary”.
Events on the morning of 9 January, particularly relating to the Baldy spot fire, are controversial and are dealt with later in these reasons.
At 1.00 pm on 9 January 2003, Commissioner Koperberg of the RFS exercised and delegated his powers under ss 44 and 45 of the Rural Fires Act to Mr Arthur as the incident controller for the fire. Mr Arthur thereby replaced Ms Crawford in that role. As noted, Ms Crawford was thereafter appointed a deputy incident controller.
The Commissioner’s opinion and delegations were set out in a document, the terms of which include the following:
Pursuant to Section 44 of the Rural Fires Act 1997, I, PHILIP CHRISTIAN KOPERBERG, Commissioner of the NSW Rural Fire Service, being of the opinion that the fire burning in the area described below is likely to assume such proportions as to be incapable of control or suppression by the fire fighting authorities in the area, hereby authorise the person identified below as the Incident Controller to take charge of fire fighting operations in the whole of the area described, assisted by the person or persons also identified below. This authority shall apply for the period indicated.
…
Area of declaration: Yarrowlumla Rural Fire District
…
Incident Controller Bruce James Arthur
…
Declaration applies from 1300 hours on 9 January 2003 until further notice.
By 6.00 pm on 9 January 2003, the McIntyres Hut Fire was recorded as covering 500 hectares (at [15]).
By 6.00 pm on 10 January 2003, the McIntyres Hut fire was 1,100 hectares in area (at [16]).
Back-burning from containment lines commenced on 11 January 2003 in the Powerline division (that is, the southern containment line). At 8.00 pm on 15 January 2003, the RFS completed the containment lines. On or about 17 January 2003, the RFS dropped aerial incendiaries within the containment lines intending to burn out the vegetation, particularly on the ridges, but this work had to cease at 2.00 pm due to high winds (at [17]). The back-burning that had been achieved to the west and east of the main fire activity by the afternoon of 17 January 2003 was insufficient to prevent the escape of fire from those fronts (at [56]).
According to the primary judge, on the afternoon of 17 January 2003 the McIntyres Hut fire broke the containment lines in the south-east, burnt down to the eastern bank of the Goodradigbee River adjacent to Tommys Flat in the west, and burnt across the River and out of control over the western bank of the River. The fire also burnt down to the eastern bank of the River at Limestone and crossed to the western bank of the River in that location (at [18]). While it is not in issue that fire escaped to the western side of the Goodradigbee River in those areas, there is a dispute as to whether the McIntyres Hut fire crossed the River at ground level or by way of spot overs.
As the primary judge put it, on 18 January 2003, the McIntyres Hut fire burnt through containment lines, spreading into the ACT and the suburbs of Canberra (at [19]). There is no issue that fire reached the ACT and suburbs of Canberra, but there is an issue as to whether it was the McIntyres Hut fire alone (or the Bendora fire also, as to which see below) that did so.
Mr Cheney’s plans, copies of which are in Schedule 3, show the progress of the McIntyres Hut fire in a schematic form. The separate fire to the south depicted in the plan titled “McIntyre Hut and Bendora Fires 18 Jan 1430hrs” (and following) is the Bendora fire. Note also the McIntyres Hut fire breaching the containment line in the south-western area (across the extension of the Powerline trail to the River), which had been cleared and back-burned, and spreading across the River itself to the west (more clearly depicted in the plan titled “McIntyre Hut Fire 18 Jan 1430hrs”). The plans of the McIntyres Hut and Bendora fires as at various times between 2.30 pm and 3.45 pm on 18 January 2003 show the McIntyres Hut fire in the south-western area (around an area known as Flea Creek which is not marked on the plan but is south of the containment area and, in particular, the Powerline trail) swinging around to the east, and joining the Bendora fire, both fires then continuing to head east towards the suburbs of Canberra.
3.2 Some disputed facts and findings
Many findings made and conclusions expressed by the primary judge are disputed on the basis that they are incorrect, incomplete, or inconsistent with all or the overwhelming weight of the evidence, or are unsupported by any evidence. These include findings that the primary judge said were undisputed. It is said that other conclusions of the primary judge, including his conclusion about the need for back-burning from the eastern bank of the Goodradigbee River, did not represent the case of any party as put to the primary judge. Because of this, where the primary judge said that matters were undisputed, the assertion cannot be accepted at face value. The main disputed findings are noted below.
3.2.1 Risk to Canberra
The primary judge noted that although “[t]here could be no doubt … that, if the McIntyres Hut fire escaped under adverse conditions, fires would approach Canberra”, there was “a difference of opinion as to whether fire would be likely to progress beyond the Stromlo area” (at [59] and [60] respectively).
Ms Crawford, Robert Hunt (an NPWS officer very familiar with the Park) and Mr Arthur considered that the base camp for fire fighters and equipment at the Stromlo forest was “the safest place it could be” and “the clear paddocks between the Stromlo forest and the urban edge, given its absence of fuel due to prolonged drought, would … provide an effective barrier given firefighters would be in attendance” (at [61] and [62]). In fact, a 200 person base camp was established at the ACT Forests facility near Mount Stromlo, but it was overrun by fire on 18 January 2003 (at [146]).
Although Mr Cheney and Trevor Roche, another expert, Mr Koperberg and Mr Hunt did not regard the risk of the fire spreading to Canberra to be zero, the risk of it doing so was not “considered great” (at [64]). Peter Cathles, a Senior Group Captain within the RFS, regarded the fire in its location as at 8 January 2003 as “a real threat to Canberra” (at [65]). Peter Stanford, a member of the Wee Jasper Volunteer Fire Brigade, “on 8 or 9 January 2003, warned Ms Crawford that the fire to the east of the Goodradigbee River posed a threat to properties to the west of the river”, which included Mr Stanford’s own property and that of the Wests (at [66]).
The primary judge found at [67] and [68] that it was “undisputed” that:
The fire, left unchecked, could well have been and, should have been, foreseen as a threat to life and property up to and including the western perimeter of Canberra.
This, however, was and is in dispute.
The primary judge said at [68] that this was:
not inconsistent, however, with the more optimistic view that, with counter measures, the fire would, on the worst case scenario, burn into the pine forests between the Park and the western suburbs of Canberra but be contained in the eaten out and drought ravaged open paddocks between the forests and any urban habitation.
On NSW’s case, the two positions are inconsistent.
According to the primary judge:
(1)All “relevant parties” were aware of the risk that “if the work was not completed by the next bad weather day the fire would, probably, escape the confines of the Park” (at [80]).
(2)All “persons who turned their minds to [the possibility that the escaping fire might burn to Canberra] considered damage to persons and property within the urban interface of Canberra to be unlikely [but] it could not be dismissed as a fanciful outcome” (at [82]). Accordingly, “unless successfully contained it was foreseeable, though not expected, that the fire would burn up to the urban interface” (at [83]).
NSW challenges these conclusions.
3.2.2 The Baldy spot fire
In respect of the issue about “the failure to directly attack, on the evening of 8 January 2003 or early 9 January 2003, the Baldy spot fire which had preceded the main fire front from the Webbs Ridge to which that fire had spread from its point of origin” (at [69]), the primary judge said (at [70]) that:
[t]here was, it was accepted, a lack of clear communication to establish that Fairlight and Mullion RFS Brigades were able and willing to combat that outbreak directly.
In fact, this was not accepted by NSW. In any event, the primary judge concluded that it was “Ms Crawford’s view that there should be no direct attack on any of the fires, particularly the Baldy spot fire” during the evening of 8 January 2003 (at [154]). This view effectively “postponed any action by the Fairlight or Mullion brigades” which, the primary judge said, were available to attend the Baldy spot fire, as was a bulldozer under the control of a Mr O’Connor at Dingo Dell (at [155]). Thus, “it was, at least objectively, possible for the Baldy spot fire to have been subjected to direct attack on the evening of 8 January 2003” (at [157]). The agreed position at the inter-agency meeting on the evening of 8 January 2003 to use Firebreak trail as the eastern containment line incorrectly assumed that Baldy trail was lost as a possible containment line (at [167]). The reason it so assumed was that the meeting had information from Neil Cooper (an employee of ACT Forests who was the ACT’s liaison officer on 9 and 10 January 2003 for Yarrowlumla) that “the fire was 20 to 30 m east of the trail, moving slowly” (at [171]).
According to the primary judge, the crew in attendance at the time had no fire fighting equipment and the fire had crossed the Baldy trail (at [173]). Further, the primary judge inferred that “it was not likely that Ms Crawford would have risked sending crews out at night even if they had been willing to go” (at [175]) but, had they gone, his Honour was “reasonably sure that … crews could, in fact, have secured the Baldy trail though there was a theoretical risk of fire flaring up from the east of the Baldy trail” (at [176]; also see [178])). Specifically, “[t]he Fairlight crew could have been directed or permitted, with or without the bulldozer, to proceed to Baldy trail” but, the primary judge inferred, permission to do so was denied, the denial emanating “from Ms Crawford either directly or as a consequence of the decision taken to implement a plan which did not include holding the Baldy trail” (at [177]).
In conclusion the primary judge said at [182]:
In any event it appears that, on the information available, both late on 8 January 2003 and early on 9 January 2003 that there was no reasonable prospect of containing the Baldy fire to the west of the Baldy trail. The objective truth may have been otherwise but the Incident Team could only be expected to make a judgment on information given to them.
Virtually all of these matters are in dispute. However, there is no appeal against the primary judge’s ultimate conclusion that it was reasonable for the Baldy spot fire not to have been directly attacked on the evening of 8 January 2003 (at [242] and [247]), and it is only the events of the morning of 9 January 2003 that remain in issue.
The primary judge said that by 11.30 am on 9 January 2003 a report from RFS Group Captains had been received to the effect that “the Baldy spot fire could be held” (at [184]) as, even though the fire was across the trail, it was not burning fiercely (at [183] and [184]). Despite this, the primary judge accepted that “Firebird 555, overflying the fire had a different view of it from the RFS Group Captains who had inspected the fire”; Firebird 555 reported that crews on the ground would not be able to get around the fire which, if true, “would have been a serious safety concern” (at [179]). According to the primary judge (at [185]), at this time and despite the conflicting advice that was received:
Inexplicably, no crews were despatched to attempt to contain the fire. Ms Crawford conceded that, as a competent IC, she should have done so.
Further, the primary judge said (at [240]):
other fires in both the Tumut and Queanbeyan areas diverted resources to those areas either on deployment or on standby. That, however, does not undermine the conclusion that on 8 and 9 January 2003 there were sufficient effective local brigades, with sufficient resources at least to confine the Baldy spot fire to the west of Baldy.
The Baldy spot fire was attacked on 10 January and it was held until 13 January 2003. The primary judge said that “it is not clear why it then escaped” but it was “likely that the delay in earlier attack upon it was a contributory factor” (at [186]). This conclusion of likelihood is characterised by NSW as speculation unsupported by any evidence and inconsistent with the evidence that was adduced.
The primary judge said:
187. I am driven to conclude that the failure to attack the Baldy spot fire, at least by the end of the morning of 9 January 2003, led to the IC team failing to secure the Baldy trail as the eastern control line.
188. This, of course, led to the eastern control line as had been proposed at the meeting on 8 January 2003 being adopted as the only strategy for the eastern front of the fire.
While the primary judge agreed with NSW that “the decision not to send crews in to Baldy and to pull crews back on the evening of 8 January 2003 was not unreasonable”, he considered the decision “or lack of it, to deploy the three local brigades after first light on the 9 January 2003 to Baldy” to be unreasonable (at [242]). Further:
243. It was not unreasonable to fear, as appeared to the meeting of 8 January 2003, that “we lost Baldy” but that was not the fact and the position should have been explored early on 9 January 2003. If it had been, and the brigades available deployed, I am satisfied Baldy would not have been lost.
244. The plan otherwise, if not optimal, was, to my mind a reasonable one. As NSW correctly submits, none of the well qualified officers at the meeting raised any objection to it.
The primary judge confirmed this conclusion at [247] saying “…even if the fire was suppressible late on 8 January 2003, given the less than consistent reports of observations, it was prudent not to proceed with direct attack on 8 January 2003 but not early on 9 January 2003”. Ms Crawford “did not turn her mind to sending those brigades [Mullion and Fairlight] in on 9 January 2003 though she accepted, when it was put to her, that it was an “obvious answer” so to do” (at [278]).
The primary judge’s characterisation of most of Ms Crawford’s evidence about the Baldy spot fire is in dispute.
The primary judge said at [279]:
Insofar as there was an erroneous decision relevant to the eastern front of the fire; that is it. Even as at 11.42 am on 9 January 2003 the inspection of Baldy reported that the fire had crossed the Baldy trail by about 50 m and a direct attack was possible. However, it was not followed up. In all probability had the Fairlight and Mullion brigades been given the task they were prepared to undertake and attend the Baldy trail, that fire could have been confined to the west of that trail. By 10 January 2003 I believe it was too late to win back that situation.
Consistent with its overall position on the Baldy spot fire, NSW challenges this conclusion.
The primary judge rejected a contention by NSW that an attempt at direct attack on the Baldy spot fire was carried out during the morning of 9 January 2003. He said that this was based on no evidence other than a report by Mr Hunt and Mr Lomas from an aircraft in circumstances where neither was called to give evidence (at [270]). Again, NSW contends the primary judge erred in so concluding.
3.2.3 The Goodradigbee River
As noted, the inter-agency meeting on 8 January 2003 decided to use the Goodradigbee River as the western containment line presumably based on the report that, at about 5.00 pm, the “McIntyres Hut fire, at its western edge, was about 600 m from the eastern bank of the river” (at [189]). According to the primary judge, this selection of a containment line was not inappropriate even if the “kink solution” (see below in respect of the “Fenwick strategy”) might have been better (at [248]).
The primary judge (at [191]), however, had “no doubt” that the Goodradigbee River:
if placed under pressure, would not hold as a containment line without back-burning. It is clear that, if it breached that containment line, the fire would, under adverse wind conditions, run up the slopes to the west of the river. Hence it would, inter alia, place properties, such as the West plaintiffs’ property, at risk of devastation.
This conclusion is disputed.
The primary judge accepted Mr Cheney’s opinion that “the rate and ferocity of the fire spread on 18 January 2003 was unprecedented and could not have been foreseen” (at [213]). Further, part of the agreed strategy was to patrol the western bank of the Goodradigbee River and use aerial water bombing to control any spot overs, but the “ferocity of the adverse weather conditions commencing on 17 January 2003 rendered that part of the strategy impossible to implement” (at [107] and [108]).
The primary judge considered, however, that it “was open to have called on local RFS crews (Wee Jasper, Brindabella and Cavan) to ensure that back-burning [from the River] was carried out without exacerbating the situation or diverting resources from more urgent tasks” but this was not done (at [196]), perhaps because “Ms Crawford expected that brigades in Yass control area, Wee Jasper, Brindabella and Cavan brigades, would “self-respond” to the western flank” (at [190]) or because of the “more obvious risk to the south east” (at [200]). Accordingly, the primary judge said:
198. In my view, so far as the western perimeter of the fire was concerned, whilst the selection of the Goodradigbee River as the containment line was defensible, it could only have been so, as with the suggested alternative, if back-burning and clearance was undertaken.
199. Merely monitoring the river was reasonable enough in the short term, but clearance by bulldozer cut and back-burning were obvious measures that could, and should have been, taken. Regrettably, they were not.
The “suggested alternative” was Mr Fenwick’s opinion that, on the western side of the fire, the containment line should have been closer to the fire, along McIntyres trail and Lovell trail (sometimes also referred to as part of Waterfall trail), but with a rake hoe line constructed across a kink in McIntyres trail.
The primary judge said that “there were resources available to ensure back-burning along the whole river front not just the part of it which was so treated and it could and should have been done by 16 January 2003” (at [249]). He described the failure to undertake back-burning from the River before 16 January 2003 as “the only criticism I consider valid” (at [251]).
The primary judge described the failure to back-burn (and clear) from the Goodradigbee River as a “serious strategic error” (at [200]). He said that, had back-burning been carried out, “the [McIntyres Hut] fire would, in my view, have been unlikely to have crossed to the west of the Goodradigbee River on 17 and 18 January 2003” (at [204]). Back-burning was feasible because, as Mr West had said, from 8 January to 11 January the western flank of the fire was “backing, slow and meandering” so there was “no apparent risk until 17 January 2003 in carrying out the strategy of clearing and back-burning from the river” (at [207]). Further (at [283]):
Mr T Cathles, Captain of Wee Jasper Brigade was available to attend the western edge of the fire each day from 8 to 12 January 2003. Even on 12 January 2003 the fire was slow moving with low flame heights about 300 m from the river. It could, he believed, have been contained there and back-burned. The Wee Jasper, Cavan, and Mullion Brigades, and a bulldozer were all available. Mr West confirmed that Mr Scanes’ Bulldozer was available on 12 January 2003.
In fact, according to the primary judge, the fire crossed the River on 17 January 2003 at the confluence of Limestone Creek and the River and at Tommys Flat near McIntyres Hut at about 4.00 pm (at [208] and [210]). As to this latter finding, the primary judge preferred the opinions of Mr Cheney over those of Professor Viegas (another fire expert) (at [209]).
Virtually all of these conclusions, apart from the unprecedented weather conditions on 17 and 18 January, are in dispute.
After the fire crossed the River, it “burnt to the west and the south devastating the West plaintiffs’ property then turned east travelling towards Canberra as the McIntyres Hut South fire” (at [210]).
The primary judge also concluded that the failure to back-burn from the Goodradigbee River involved a breach of s 63 of the Rural Fires Act (at [202]), another conclusion challenged by NSW.
3.2.4 The “Fenwick strategy” compared to the “indirect strategy”
The “Fenwick strategy” was devised after the event by Mr Fenwick. Amongst other things, Mr Fenwick said that it would have been better to directly attack the fire on the Baldy trail and establish a western control line closer to the point of origin of the McIntyres Hut fire across the kink in McIntyres trail, thus joining Lowells Flat trail to McIntyres Hut trail.
According to the primary judge, the failure of all those at the meeting on 8 January to perceive the availability of an alternative solution was not the result of any failure by Ms Crawford to comply with protocols for incident controllers but rather that “no-one at the meeting of 8 January 2003, then or later, considered, in their judgment, that any reasonable alternative existed” (at [114]).
The primary judge said, the “Fenwick strategy was, at least potentially, a better course” than the indirect strategy agreed by all involved in the 8 January 2003 inter-agency meeting (at [115]). However, as the primary judge subsequently put it, “the rate and ferocity of the fire spread on 18 January 2003 was unprecedented and could not have been foreseen” (at [213]). He continued:
214. Nevertheless, although none of the experienced officers from NSW or ACT thought of it, I accept that, in general terms a less indirect strategy would have been preferable.
215. It was practicable, in my view, to have, on 9 January 2003, confined the eastward spread of the fire to the west of the Baldy trail.
216. It was also practicable to have confined the western edge of the fire to the east of the kink.
217. That would, as the plaintiffs submit, have created a western containment line of Lowells/kink/McIntyres Hut trails. The southern containment line could have been a bulldozer line between that trail and Webbs Ridge trail to Dingi trail.
218. The Baldy trail would have been the eastern containment line. That would have reduced the area to be burnt out quite considerably.
219. It should be noted that I do not consider that a competent IC would necessarily have thought of, or embraced, every aspect of Mr Fenwick’s alternative strategy. There is an element of hindsight in his approach but, even discounting that, I was greatly impressed by the level of experience and ability of Mr Fenwick such that I am of the view that the fact that no IC thought of every strategy he would have, does not lead to the conclusion that that IC was incompetent or, more relevantly, negligent.
It is not easy to reconcile these statements by the primary judge with his Honour’s rejection of Mr Fenwick’s plan of “attacking the north-east and south-east heads of fire by end of 9 January 2003” as “simply impracticable” (at [273]) and the statement that “whilst, with the benefit of hindsight, some elements of Mr Fenwick’s proposal had merit, the only portion of it which was practicable was the proposal to take action early on 9 January 2003 to confine the Baldy spot fire to the west of the Baldy trail” (at [275]). There is no challenge to this aspect of the primary judge’s reasoning.
Despite these reservations about the “alternative strategy”, the primary judge characterised the strategy agreed on 8 January and thereafter implemented, particularly to the south-east and the south-west, as “so flawed” as to constitute negligence (at [223] to [224]). The primary judge then said:
225. The western side strategy was flawed in that no adequate fire suppression was directed towards supporting the river as a containment line. Whether or not the Lowells/kink/McIntyres line was adopted, any containment line required ground support not just aerial patrols or the vague hope that local brigades might self-respond, particularly in the absence of clear, or indeed any, direction to that effect.
226. I also accept that, if, on the morning of 9 January 2003, the available brigades and bulldozer had been despatched to Baldy they would have concluded the fire could have been contained to the west of the trail and, in all probability, would have done so.
227. That would have allowed back-burning closer to the point of origin, greatly reducing the area to be burnt out. It would also have freed up some resources more quickly to secure the then perimeters, even allowing for the Powerline trail difficulties.
228. It therefore seems to me, as a matter of fact that the failure to have taken those steps was both negligent and causative of the escape from those fire fronts to the east and the west. The fire which crossed the Goodradigbee River has been referred to as the McIntyres Hut South fire and the fire which escaped over the Fire Break trail was referred to as the McIntyres Hut North fire.
229. Critical to the escape of the McIntyres Hut North fire was the existence of large tracts of unburnt vegetation to the west of the Fire Break trail which, the aerial incendiary strategy having failed, enabled long distance spotting under the extreme conditions of 17 and 18 January 2003.
Most of these statements are challenged.
The primary judge also drew the following conclusions, a number of which are difficult to reconcile with his conclusion of negligence:
(1)The containment area of 10,000 hectares to be burnt out before the next bad weather day was a “difficult strategy” but not impossible to achieve (at [73]).
(2)A “bad weather” day of the kind anticipated to occur within seven days of the 8 January 2003 inter-agency meeting included the possibility, albeit rare and unlikely, of “catastrophic weather conditions the like of which was up to then unprecedented” (at [76]).
It is not necessary to express a concluded view on this question, however, because whether or not the RFS or Mr Koperberg “assumed” a duty of care to warn the public, or the QBE plaintiffs in particular, the duty was not breached.
Section 5B of the Civil Liability Act contains some general principles governing the determination of whether a person is negligent. It relevantly provides:
(1)A person is not negligent in failing to take precautions against a risk of harm unless:
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b)the risk was not insignificant, and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a)the probability that the harm would occur if care were not taken,
(b)the likely seriousness of the harm,
(c)the burden of taking precautions to avoid the risk of harm,
...
In the present case it may be accepted that there was a foreseeable risk that the fire could escape its containment lines and damage properties in the ACT including (despite NSW’s contention to the contrary) Canberra. Ms Crawford (at T3965) and Mr Arthur (at T4563) admitted that the risk was there as early as 8 January, Mr Koperberg by 12 January (at T5044) and, for the reasons given by Jagot J at [296]–[300], there was an abundance of evidence to support their admissions. It may also be accepted that the risk was not insignificant. But I do not accept that a reasonable person in Mr Koperberg’s position more probably than not would have disclosed in the television interview the concerns he expressed in private to Mr Lucas-Smith. While the potential for harm was undoubtedly serious and taking the suggested precautions would not have been burdensome, there is no reason to think that there was any probability that harm would occur if the full extent of Mr Koperberg’s apprehensions were not disclosed in the interview.
In any case, while they may not have been fulsome, I am not persuaded that Mr Koperberg’s remarks were misleading. Mr Koperberg said that the ACT was at risk. The ACT is relatively small and Canberra is its capital. It is unlikely that residents of Canberra’s western suburbs, who lived so close to the Brindabella National Park, would be led astray by Mr Koperberg’s remarks or lulled by them into a false sense of security.
More importantly, perhaps, Electro Optic’s argument proceeds from the erroneous assumption that the duty could only be discharged by providing additional, unsolicited information in the television interview. Mr Koperberg had already supplied the allegedly missing information to his ACT counterpart, offered him whatever resources he requested and supplied him with all that he asked for. That was sufficient to discharge whatever duty Mr Koperberg may have assumed to the QBE plaintiffs. In other words, if there were a duty of the kind for which the QBE plaintiffs contended, they did not prove that it had been breached.
Conclusion
While the primary judge did make a number of errors, his Honour was right to reject the allegation made by the QBE plaintiffs that Mr Koperberg was negligent by understating or otherwise misrepresenting in a television interview on 15 January 2003 his opinion about the extent of the risk of damage posed by the NSW fires. His Honour was also right to conclude that s 128 of the Rural Fires Act gave NSW an immunity from liability. It follows that the appeal must be dismissed. In these circumstances it is unnecessary to deal with the issues raised by the notice of contention.
That said, I agree with Jagot J that, although the actions were justiciable, NSW did not owe a duty of care to the plaintiffs as alleged and, with the singular exception of the characterisation of the breaches of duty found by the primary judge as “mere omissions”, I agree with her Honour’s reasons. With the same caveat, I agree with her Honour that the primary judge’s findings on breach were erroneous. In particular, as I have explained above at [677]–[689], the finding that it was negligent not to back-burn along the Goodradigbee River was against the overwhelming weight of the evidence. The finding that it was negligent not to directly attack the Baldy fire on the morning of 9 January 2003 cannot be sustained for the reasons given by Jagot J.
Furthermore, I agree with Jagot J that in any case the plaintiffs failed to prove that it was more probable than not that those breaches either together or individually caused damage to their properties. I agree with her Honour that the finding that clearing and back-burning from the river would have prevented the fire crossing the river on 17 and 18 January is based on speculation. I also agree with her Honour that the evidence tends to show that, rather than preventing the fire crossing the river on those days, clearing and back-burning from the river would actually have increased the risk of the fire escaping the containment lines. As for the contribution to the damage from the failure to directly attack the Baldy fire on the morning of 9 January, in my view, taken at its highest, the evidence raised no more than a possibility.
I would therefore dismiss the appeal in any event.
I agree, too, with Jagot J that the cross-appeal should be allowed. I also agree with the orders her Honour proposes.
I certify that the preceding paragraphs numbered five hundred and twenty-five to seven hundred and forty-three ([525]-[743]) are a true copy of the Reasons for Judgment of Katzmann J.
Associate:
Date: 31 October 2014
SCHEDULE 1
Agreed statement of issues
Justiciability (Notice of Contention Ground 1)
Whether the primary judge failed to identify as an issue for determination, and failed to determine, whether or not in the factual and statutory context of this case the questions of duty, content of duty, breach and cause were issues that were justiciable in a court of law?
Whether the primary judge ought to have determined, and this court should hold, that the issues presented by the appellants for determination by the court are not justiciable (Judgment [126])?
Duty (Notice of Contention Grounds 2, 3)
Whether the primary judge erred in finding that the respondent owed to the appellants, or any one of them, a duty of care? In particular:
(i)What was the basis upon which the primary judge reasoned to his conclusion that a duty of care was owed?
(ii)Whether the primary judge failed in his determination of the issue of whether or not those for whom the respondent was allegedly vicariously liable (Mr Arthur and/or Ms Crawford) owed to the appellants, or any one of them, a duty of care by applying principles identified by the House of Lords in Caparo v Dickman [1990] 2 AC 605, an approach to the determination of duty which was rejected as a matter of principle by the High Court in Sullivan v Moody (2002) 211 CLR 317?
(iii)Whether the primary judge failed to consider, properly or at all, the fact or nature of the relationship between those for whom the respondent was allegedly vicariously liable (Mr Arthur and/or Ms Crawford) on the one hand and the appellants, or any one of them, on the other hand, and in particular determined that it was not necessary for each potential plaintiff to be identified before a duty was owed (Judgment [328])?
(iv)Whether the primary judge ought to have found that duties of care are owed to individuals and not to the world at large?
(v)Whether the primary judge thereby failed to consider, properly or at all, what, if any, salient features of the relationship between those for whom the respondent was allegedly vicariously liable (Mr Arthur and/or Ms Crawford) on the one hand and the appellants, or any one of them, on the other hand were established so as to inform, support or deny any duty of care?
(vi)Whether the primary judge failed to consider, properly or at all, the question of foreseeability of harm, at the level of abstraction appropriate for determination of a duty of care, in respect of the appellants or any one of them?
(vii)Whether the primary judge , in determining that the respondent owed to the appellants and each of them a duty of care:
(a) applied a doctrine of general reliance?
(b) misconstrued the Rural Fires Act by identifying a private law positive duty to protect the public contrary to binding authority in the High Court of Australia in Sullivan v Moody (2002) 211 CLR 317, Tame v State of New South Wales (2002) 211 CLR 317 and Stuart v Kirkland-Veenstra (2009) 237 CLR 215 (Judgment [306] – [328])?
Whether the primary judge ought to have found that those for whom the respondent was allegedly vicariously liable (Mr Arthur and/or Ms Crawford) did not owe a duty of care to the appellants or any one of them?
Nature, scope or content of duty (Notice of Contention Grounds 4, 5, 6, 7)
Whether the primary judge failed to consider, properly or at all, the nature, scope or content of any duty of care owed by those for whom the respondent was allegedly vicariously liable (Mr Arthur and/or Ms Crawford) to the appellants or any one of them (Judgment [329])?
Whether the primary judge erred by identifying or specifying a content of a duty at a level of generality so broad as to amount to a duty of care to the world at large and not to individuals, or a class of persons, of which the appellants, or any of them, are members, being a duty requiring positive or affirmative action to prevent harm to third persons from harm not created by those for whom the respondent was allegedly vicariously liable?
Whether the primary judge failed properly or at all to expose the reasoning process by which he determined the content of the duty of care expressed by him at Judgment [329]?
Whether the primary judge should have, but did not, have regard, or proper regard to all of the factors relevant to determining the nature, scope and content of the duty of care? In particular:
(i)the respondent’s frontline fighting force was comprised substantially of volunteers;
(ii)there were many other known fires in the respondent’s area of concern, and there was the potential for other fires to declare themselves in the near future either by reason of the events of 8 January 2003 or alternatively later natural events;
(iii)the law’s reluctance to impose upon any person, natural or otherwise, an obligation of affirmative action;
(iv)the need to avoid taking steps that might create danger that was otherwise absent; and
(v)failing to consider whether there was disconformity or incoherence between the statutory scheme expressed in the Rural Fires Act and the National Parks and Wildlife Act and the nature and extent of the content of the duty that his Honour found?
Breach of duty of care (Notice of Contention Grounds 8, 9 and 11 (i))
Whether the primary judge erred in finding breach of duty? In particular whether the primary judge erred in:
(i)failing to identify or consider, properly or at all, the factors required for the application of s.5B of the Civil Liability Act (NSW) 2002 (‘the Act’)?
(ii)failing to identify the risk of harm to the appellants, or any one of them, as required by s.5B(1) of the Act?
(iii)failing to address, properly or at all, the foreseeability of the risk of harm required by s.5B(1)(a) of the Act?
(iv)failing to consider, properly or at all, whether or not any such risk of harm identified was not insignificant as required by s.5B(1)(b) of the Act, and in particular misdirected himself at Judgment [82] and [83] by reference to a “fanciful outcome”?
(v)failing to consider, properly or at all, the central concept of reasonableness provided for in s 5B(1)(c) of the Act and in particular failed to have any or any proper regard to the matters mandated by s 5B(2) of the Act?
(vi)assessing retrospectively and not prospectively the reasonableness or otherwise of the alleged failure to further investigate and commit resources against the Baldy Trail fire on the morning of 9 January 2003? and
(vii)assessing retrospectively and not prospectively the reasonableness or otherwise of back-burning from the Goodradigbee river?
Whether the primary judge:
(i)erred in finding that the respondent failed to engage, or consider engaging, the fire in that area of the Brindabella National Park known as Baldy Trail?
(ii)should have found that those for whom the respondent was allegedly vicariously liable (Mr Arthur and Ms Crawford) did engage, or considered engaging, the fire at Baldy Trail on the morning of 9 January 2003?
(iii)erred in rejecting the evidence of Robert Hunt to the effect that he observed fire fighters on the eastern side of Baldy Trail on the morning of 9 January 2003?
(iv)ought to have found that Robert Hunt had observed fire fighters on the eastern side of Baldy Trail on the morning of 9 January 2003?
(v)ought to have found that the strategic decision by those for whom the respondent was allegedly vicariously liable (Mr Arthur and/or Ms Crawford) to not further engage the Baldy Trail fire on 9 January 2003 was reasonable or alternatively, was not so unreasonable that no authority could consider so to act?
(vi)erred in finding that the respondent ought to have cleared by bulldozer cut and back-burned along the whole river front of the Goodradigbee River? and
(vii)ought to have found that the strategic decision by those for whom the respondent was allegedly vicariously liable to not clear by bulldozer cut and back burn along the of the whole river front of the Goodradigbee River was reasonable or alternatively, was not so unreasonable that no authority could consider so to act?
(viii)the respondent breached its duty of care by failing to clear by bulldozer cut and back burn along the whole river front of the Goodradigbee river?
Causation (Notice of Contention Grounds 10, 11)
Whether the primary judge erred in his determination that:
(i)the failure to further investigate and or engage the fire on Baldy Trail on 9 January 2003 was a necessary condition of the occurrence of the harm suffered by the appellants or any one of them? and
(ii)the scope of the respondent’s liability should extend to the harm so caused?
Whether the primary judge erred in his determination that:
(i)the failure to clear by bulldozer cut and back burn along the whole river front of the Goodradigbee river was a necessary condition of the occurrence of the harm suffered by the appellants or any one of them? and
(ii)the scope of the respondent’s liability should extend to the harm so caused?
Section 42 of the Civil Liability Act 2002 (Notice of Contention Ground 12)
Whether the primary judge erred in considering the relevance of s.42 of the Act and its application to this case?
Whether the primary judge ought to have found that the principles mandated in s.42 of the Act both with respect to the existence of a duty and any breach thereof involved a consideration of the resources reasonably available to those for whom the respondent was allegedly vicariously liable (Mr Arthur and Ms Crawford) from time to time and in particular on 8 and 9 January and up to 16 January 2003 especially in the context of the broad range of his, her or their activities?
Section 43A of the Civil Liability Act 2002 (Notice of Contention Ground 13)
Whether the primary judge ought to have found that s.43A of the Act was engaged by the facts of this case and that the preconditions for liability prescribed by that section were not satisfied?
(i)Is the State’s liability based on a public or other authority’s exercise of, or failure to exercise, a special statutory power conferred on the authority?
(ii)If so, were the acts and omissions constituting the breaches of duty in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power?
(iii)Should the primary judge have concluded that no relevant authority could have properly considered the acts and omissions constituting the breaches of duty to be a reasonable exercise of, or failure to exercise, its power?
Section 128 of the Rural Fires Act 1997 (Notice of Contention Ground 14)
Whether the primary judge should have found that in respect of each of those for whom the respondent was allegedly vicariously liable (Mr Arthur and Ms Crawford) and who were concerned with relevant decision making there was direct evidence of the state of mind of each of those persons and in particular evidence of the purpose for each such decision (s.128 of the Rural Fires Act 1997 (NSW))?
(Amended Notice of the Appeal ground 2)
Did the primary judge err in finding that s 128 applied to deny the appellants’ claims?
(i)Did the primary judge err in finding that Ms Crawford was a “protected person or body” within the meaning of s 128(2)?
(ii)Did the primary judge err in failing to address whether the relevant conduct was done for the purpose of executing a provision of the Rural Fires Act?
(iii)Did the primary judge err in wrongly posing the question to be determined as “whether the acts of relevant officials were done pursuant to the execution of functions under the Rural Fires Act”?
(iv)Did the primary judge err in failing to apply the appropriate test in determining whether the relevant acts were done in good faith?
(v)Did the primary judge err in finding that s 128 applied in circumstances where the State failed to call direct evidence of the state of mind of each relevant witness concerned with the relevant decision making and thus failed to discharge its onus of establishing the defence?
Did the primary judge err in applying s 43 to the appellant’s case?
(i)Did the primary judge err in finding that s 43 applied when the State did not rely on s 43 in its defence?
(ii)Did the primary judge err in finding that s 43 applied where the State’s liability was not based on a breach of statutory duty?
Warnings (Amended Notice of Appeal ground 3)
Did the primary judge err in failing to find that the State owed the appellants a duty to warn them of the risk of fire escaping from the Brindabella National Park and causing damage to property in the ACT?
Did the primary judge err in failing to find that the State assumed a duty to warn the appellants of the risk of fire escaping from the Brindabella National Park and causing damage to property in the ACT?
Did the primary judge err in failing to find that the duty to warn was breached by Mr Koperberg’s failure to provide adequate and complete information in media interviews as to the threat posed to the property of the appellants by the fire over which the State had assumed control?
Costs (Cross Appeal)
Did the primary judge err in not finding that in substance and reality the State had succeeded in the litigation?
Did the primary judge err in finding that the terms of settlement between the plaintiffs other than the appellants and the State had not been disclosed to the Court?
Did the primary judge err in taking into account the fact that the plaintiffs other than the appellants had settled with the State prior to the giving of judgment?
Did the primary judge err in finding that the West appellants were only concerned with the firefighting efforts to prevent the escape of fire from the west across the Goodradigbee River?
Did the primary judge err in not finding that the majority of the time spent in the trial involved the appellants’ contention that the plan to fight the fire and the implementation of that plan was unreasonable?
(i)On that issue, did the primary judge substantially find in favour of the State?
Having found that the defence under s 128 of the Rural Fires Act was not capable of being determined until all the evidence had been presented and tested, did the primary judge err in concluding that there was no basis for discounting the award of costs in favour of the State?
Did the primary judge err in finding that the appellants had acted reasonably in rejecting the Calderbank offers of 22 and 23 February 2010, and of 14 October 2010, and hence that the award of costs should be only on a party-party basis?
Did the primary judge err in finding that the costs incurred by the State in dealing with the plaintiffs who ultimately settled before judgment was relevant?
Did the primary judge err in finding that the costs incurred by the State in dealing with the case presented by the ACT were relevant?
In the circumstances, was the discount of costs against the appellants by 50% so excessive that his Honour exercise of discretion must have miscarried?
SCHEDULE 2
SCHEDULE 3
10
5
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