Electro Optic Systems Pty Ltd v State of New South Wales

This case concerned appeals and cross-appeals arising from a bush fire that ignited by lightning in a national park in New South Wales. The plaintiffs, property owners, alleged negligence against the State of New South Wales, arguing that successive incident controllers, appointed under the *Rural Fires Act 1997* (NSW), owed them a duty of care to prevent harm caused by the spread of the fire. The court was required to determine whether the State, through its incident controllers, owed such a duty, and whether the State could be considered an "occupier" for the purposes of any such duty. Further issues included whether the New South Wales Rural Fire Service assumed a duty to warn residents of the Australian Capital Territory of the fire's risks through public statements, and whether the alleged breaches of duty by the incident controllers were based on the exercise or failure to exercise a "special statutory power" under section 43A of the *Civil Liability Act 2002* (NSW).

The court was also asked to consider whether the alleged breaches constituted contraventions of section 63 of the *Rural Fires Act 1997* (NSW), specifically whether the obligation to "minimise the danger of the spread of a bush fire" applied to a fire already burning at the time of the alleged omission. Finally, the court had to determine whether section 128 of the *Rural Fires Act 1997* (NSW), which confers immunity upon a "protected person" for acts or omissions done in good faith for the purpose of executing a provision of the Act or another Act, provided immunity to the incident controllers for the alleged breaches. This involved considering whether the incident controllers were "protected persons," whether the alleged breaches were acts or omissions covered by the immunity, the meaning of "good faith" in this context, and whether the acts or omissions were for the purpose of executing a statutory provision.

The Court of Appeal dismissed the appeals and cross-appeals. It held that the incident controllers were not owed a duty of care in negligence. The court found that the statutory framework, particularly the *Rural Fires Act 1997* (NSW), did not impose a duty of care on incident controllers to prevent the spread of a fire to neighbouring properties. The court also determined that the statements made by the Rural Fire Service did not give rise to an assumption of a duty to warn residents of the Australian Capital Territory. Furthermore, the court found that section 128 of the *Rural Fires Act 1997* (NSW) conferred immunity on the incident controllers for the alleged breaches, as their actions or omissions were undertaken in good faith for the purpose of executing the provisions of the Act. The court upheld the primary judge's cost orders, with some adjustments regarding the cross-appeals.