SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
PROUDE v VISIC AND ORS (NO 4)
[2013] SASC 154
Judgment of The Honourable Justice Blue
11 October 2013
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE
TORTS - NEGLIGENCE - STATUTES, REGULATIONS, ETC - APPLICABILITY AND EFFECT IN ACTIONS FOR NEGLIGENCE - GENERALLY
On 10 - 11 January 2005, a bushfire caused damage to property of various landholders on the Lower Eyre Peninsula. Mr Proude brings this action as representative of the landholders. Mr Proude claims losses suffered due to the bushfire were caused by the negligence of the first defendant, Mr Visic, and the second defendant, the Country Fire Service (CFS).
The CFS applies by interlocutory application for summary judgment under rule 232, or summary dismissal under rule 193, of the Supreme Court Civil Rules 2006 (SA) on the grounds that:
1. the CFS did not owe a duty of care to the landowners as alleged by Mr Proude and Mr Visic;
2. the CFS did not owe a statutory duty to Mr Proude as alleged by Mr Visic;
3. alternatively, the CFS is immune from civil liability under s 64 of the Country Fires Act 1988 (SA).
The CFS does not adduce any substantive evidence on its applications but proceeds on the assumption that the allegations of fact contained in the pleadings against it are true.
Held dismissing the applications:
1. The criterion for granting summary judgment is whether there is “no reasonable basis” for the claim as provided by rule 232(2) (at [16]-[18]).
2. When a plaintiff’s case is that a defendant intervened in an attempt to prevent or reduce loss to the plaintiff but did so negligently by inadequate or ineffective steps without positively increasing the loss or risk of a loss, the question whether a duty of care arose invites a multi-faceted inquiry into the salient features of the relationship between the parties (at [105]).
3. The multi-faceted inquiry encompasses in the present case the nature and degree of control exercised by the CFS over the fire and the fire fighting efforts, the vulnerability and dependence of the landholders to and on the CFS in relation to fighting the fire and the assumption of responsibility by the CFS in relation to fighting the fire (at [109]).
4. On the face of the pleadings, Mr Proude and Mr Visic have a reasonable basis for the claims insofar as they depend upon establishing the existence of a duty of care. However, whether a duty of care actually arose can only be determined at trial (at [109]).
5. Mr Visic’s pleading of the cause of action of breach of statutory duty should be struck out because it pleads a broad statutory duty which is untenable (at [115]-[116]).
6. However, it does not follow that Mr Visic is incapable of pleading a tenable narrow breach of statutory duty case…
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- AGLC
- Proude v Visic (No 4) [2013] SASC 154
- Case
- [2013] SASC 154
- Decision Date
CaseChat Overview and Summary
The court needed to decide whether the CFS owed a duty of care to the plaintiffs and whether the statutory immunity provision applied to the CFS's actions. The primary legal issue was whether the CFS's response to the bushfire was so negligent that it could be held liable for the extensive property damage. Additionally, the court had to interpret the statutory immunity provision to determine if it shielded the CFS from civil liability for its actions or inactions during the fire.
The court found that there was a reasonable basis for both the claim and the cross-claim, meaning that summary judgment was not appropriate. The court determined that the plaintiffs had presented sufficient evidence to suggest that the CFS could be held liable for failing to adequately control the bushfire. Furthermore, the court ruled that the statutory immunity provision did not apply in this context, as it was intended to protect the CFS from liability for operational decisions, not for gross negligence or failure to act. Consequently, the court dismissed the applications for summary judgment but struck out the pleading of the cause of action of breach of statutory duty.
The court's decision effectively allows the case to proceed to trial, where the merits of the claims and cross-claims can be fully examined. The plaintiffs have the opportunity to prove their case against the CFS, and the CFS will have the chance to defend itself against the allegations of negligence. The court's ruling ensures that the statutory immunity provision will not act as a shield for gross negligence or failure to act in the context of this case.
Orders
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