Proude v Visic (No 4) - [2013] SASC 154

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 co-extensive with his breach of duty of care case (at [119]).
7.      The CFS did not adduce any evidence or plead any material facts from which it could be concluded that its members and officers acted “honestly” within the meaning of s 64 of the Act. In any event, this question can only be properly assessed at trial (at [128]-[130]).
Acts Interpretation Act 1919 (SA) s 4; Civil Liability Act 2002 (NSW) s 43; Country Fires Act 1988 (SA) s 6, 7, 8, 10, 12, 15, 16, 39, 53, 54, 58, 64, 66; Federal Court of Australia Act 1976 (Cth) s 31A; Rural Fires Act 1997 (NSW); Supreme Court Civil Rules 2006 (SA) r 81, 100, 193, 232, referred to.
Byrne v Australian Airlines Ltd (1995) 185 CLR 410; Capital & Counties PLC v Hampshire County Council [1997] QB 1004; Ceneavenue Pty Ltd v Martin [2008] SASC 158; (2008) 106 SASR 1; Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1; Electro Optic Systems Pty Ltd v The State of New South Wales [2012] ACTSC 184; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540; Kent v Griffiths [2001] QB 36; Pyrenees Shire Council v Day 1998] HCA 3; (1998) 192 CLR 330; Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215; Warragamba Winery Pty Ltd v New South Wales (No 9) [2012] NSWSC 701; Warragamba Winery Pty Ltd v New South Wales (No 9) [2012] NSWSC 701, discussed.
Attorney-General of Dutchy of Lancaster v London and North Western Railway Co [1892] 3 Ch 274; Austrust Ltd v Astley (1996) 67 SASR 207; Burnett v Grampian Fire and Rescue Service [2007] CSOH 3; Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1979) 139 CLR 529; Cratyrko v Edith Cowen University [2005] HCA 14; (2005) 79 ALJR 839; De Bruyn v South Australia (1990) 54 SASR 231; Dey v Victorian Railways Commissioner (1949) 78 CLR 62; Estate of Bradman v Allens Arthur Robinson [2010] SASC 71; (2010) SASR 1; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; Morton v Arbuckle [1918] VLR 657; New South Wales v West [2008] ACTCA 14; (2008) 165 ACTR 47; Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180; Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489; Southerland Shire Council v Heyman (1985) 157 CLR 424; Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118; Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562; Wall v Bank of Victoria Ltd (1890) 16 VLR 2; Wickstead v Brown (1992) 30 NSWLR 1; Zakka v Elias [2013] NSWCA 119; Attorney-General of Dutchy of Lancaster v London and North Western Railway Co [1892] 3 Ch 274, considered.

PROUDE v VISIC AND ORS (NO 4)
[2013] SASC 154
Civil:
Blue J:

In this action, Mr Proude sues Mr Visic and the Country Fire Service (“the CFS”) in negligence. Mr Proude claims that loss and damage caused by bushfire on the Lower Eyre Peninsula on 10 and 11 January 2005 was caused by Mr Visic’s negligence and that the CFS negligently failed in its attempts to contain and extinguish the fire.
Mr Proude brings the action under Rule 81 of the Supreme Court Civil Rules 2006 (SA) (“the Rules”) as a representative of all landholders[1] who suffered loss or damage to their land[2] caused by a bushfire or bushfires[3] that broke out on 10 and 11 January 2005 (“the landholders”).
[1]    Natural persons or corporations who were the registered proprietors of land or had a right of exclusive possession to land.
[2]    Including loss or damage to the soil, tress and remnant vegetation or to buildings, chattels and livestock on, or attached to, that land.
[3]    There is a dispute between whether there was a single fire or multiple fires which broke out on 10 and 11 January 2005. That dispute is not relevant to the CFS’s applications addressed herein and, for simplicity, I refer to the fire or fires as “the fire”.
Mr Visic brings a cross action against the CFS claiming contribution if he is found liable in the action.
The CFS seeks summary judgment in the action against the plaintiff[4] and against Mr Visic.[5]
[4] By interlocutory application filed 14 August 2012 FDN 19.
[5] By interlocutory application filed 4 February 2013 FDN 59.
The CFS does not adduce any substantive evidence on the applications for summary judgment but proceeds on the assumption, for the purposes of the applications, that Mr Proude and Mr Visic will establish the factual allegations contained in their statements of claim against the CFS. The basis of the applications is that:
1.the CFS did not owe a duty of care to the landholders 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; and
3.the CFS is immune from civil liability under section 64 of the Country Fires Act 1988 (SA) (“the Act”).
I heard argument on the applications on 6, 7 and 11 June 2013. On 17 July 2013, I dismissed the applications for summary judgment but struck out Mr Visic’s pleading of the cause of action of breach of statutory duty. I indicated that I would later provide reasons for my judgment. These are those reasons.
Background
On 10 January 2005 at about 3.00 pm, a bushfire broke out on the eastern side of Lady Franklin Drive, Lower Eyre Peninsula, approximately 45 kilometres north-west of Port Lincoln. Shortly before 3.00 pm, Mr Visic drove and parked his land cruiser in the general vicinity in which the bushfire broke out. The bushfire burnt a local area of land up to a swamp known as paperbark swamp during the afternoon and night of 10 January 2005. The burnt land included five properties owned by five families.
On the morning of 11 January 2005, the bushfire and/or another bushfire broke out of the paperbark swamp. Mr Proude’s case is that it broke out at one point south (“area A”) and another point east (“area C”) of the paperbark swamp. The bushfire or bushfires (collectively “the fire”) ultimately burnt approximately 78,000 hectares on 11 January 2005.
In his fourth statement of claim, Mr Proude pleads that the losses suffered by those landholders whose properties were burnt on 11 January 2005 were caused, inter alia, by the negligence of the CFS in its response to the fire which resulted in its spreading out from the paperbark swamp on the morning of 11 January 2005. Mr Proude pleads that the CFS owed a duty to the landholders to take reasonable care in the course of attempting to control and extinguish the fire, and to prevent the spread of the fire to avoid foreseeable risks of property loss or damage.
Mr Visic pleads that the CFS owed a duty of care to Mr Proude to take reasonable care in the course of attempting to control, extinguish, and prevent the spread of the fire and so to avoid the foreseeable risks of property loss and damage.
In addition, Mr Visic pleads that the CFS owed a series of statutory duties to Mr Proude, including to prevent, control and suppress fires and protect property in fires in the country in South Australia in an effective and efficient way.
The CFS in its defence to Mr Proude’s claim denies that it owed any duty of care to Mr Proude or the landholders. The CFS also pleads by way of affirmative defence statutory immunity from civil liability under section 64 of the Act.
The criterion for summary judgment
Rule 232(2) of the Rules provides:
Summary judgment may only be given if the Court is satisfied that—
(a) if the applicant is a plaintiff—there is no reasonable basis for defending the applicant's claim; or
(b) if the applicant is a defendant—there is no reasonable basis for the claim against the applicant.
The test is expressed in the same terms regardless of whether the applicant is plaintiff or defendant, namely whether there is “no reasonable basis” for the claim or defending the claim.
In Ceneavenue Pty Ltd v Martin[6] Debelle J (Duggan and Anderson JJ agreeing) said of Rule 232:
Its predecessor was 25.04 … Rule 25.04 spelled out its own requirement for summary judgment, namely, that the plaintiff could not succeed on any possible view of the facts or the law. That test reflected the reasons of Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) …
A comparison of the test in r 25.04 with the test in r 232(2)(b) readily discloses that the burden to be discharged by the defendant on an application under para (b) is lighter than the burden that had to be discharged under r 25.04. The reasoning in General Steel is, therefore, no longer applicable. I respectfully agree with Bleby J that the barrier to summary judgment on an application by a defendant has been lowered: JT Nominees Pty Ltd v Macks (2007) 97 SASR 471 at [61].
While there can be no doubt that para (b) has significantly lightened the burden for a defendant seeking summary judgment, two questions nevertheless remain. The first is what is meant by the expression “no reasonable basis” for the claim against the defendant and the second is whether the test is materially different from the test of a real question to be tried … The test in r 232(2) requires the court first to identify the issues to be tried and then to assess whether the claim or defence has reasonable prospects of success. In the case of an application for summary judgment by a plaintiff against a defendant, it is doubtful, therefore, whether there is a material difference between that test and the former test as it had been expressed in Fancourt. That is because the question whether there is a real question to be tried denoted that the task for the court was to determine whether the issues at the trial are real or fanciful and have reasonable prospects of success.
The question whether there is no reasonable basis for the claim or defence must be determined in a summary way. It is entirely inappropriate for there to be a mini trial on that question. It must, therefore, be evident or obvious that the party defending the application for summary judgment has no reasonable basis for the claim or the defence. While adversarial argument will assist in the determination of that question, the question should be capable of ready resolution without prolonged argument. A prolonged argument might suggest that there is a reasonable basis for the claim or the defence. Comparison with the requirements in rules in other jurisdictions providing for summary judgment confirms these propositions.[7]
[6] [2008] SASC 158; (2008) 106 SASR 1.
[7] (2008) 106 SASR 1 at [79]-[82].
Section 31A of the Federal Court of Australia Act 1976 (Cth) relevantly provides:
(1)     The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)     The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)     For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)hopeless; or
(b)bound to fail;
for it to have no reasonable prospect of success.
(Emphasis added)
Section 31A(2)(b) bears a similarity to Rule 232(2)(b). However, the Federal Court provision refers to “no reasonable prospect of successfully prosecuting the proceeding”, whereas this Court’s rule refers to “no reasonable basis” for the claim. The inquiry in the Federal Court is directed to the future and to an assessment of the prospect of success, whereas the provision in this Court is directed to the present and to the basis for the plaintiff’s claim. While there is no equivalent in this Court’s Rules to section 31A(3), the Full Court decided in Ceneavenue that it was not a pre-condition for obtaining summary judgment that a proceeding be demonstrated to be hopeless or bound to fail.
In Spencer v Commonwealth of Australia,[8] the High Court warned against placing a gloss upon the words of section 31A and seeking to substitute judicial formulations.[9] The High Court also said that the exercise of powers to terminate summarily proceedings must always be attended with caution.[10] French CJ and Gummow J said:
[8] [2010] HCA 28; (2010) 241 CLR 118.
[9] (2010) 241 CLR 118 at [22] per French CJ and Gummow J and [58]-[60] per Hayne, Crennan, Kiefel and Bell JJ.
[10] (2010) 241 CLR 118 at [24] per French CJ and Gummow J and [60] per Hayne, Crennan, Kiefel and Bell JJ.
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.[11]
(Citations omitted)
and Hayne, Crennan, Kiefel and Bell JJ said:
How then should the expression “no reasonable prospect” be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the meters and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.
Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.[12]
[11] (2010) 241 CLR 118 at [25]-[26] per French CJ and Gummow J.
[12] (2010) 241 CLR 118 at [58]-[60] per Hayne, Crennan, Kiefel and Bell JJ.

In accordance with the injunction by the High Court, I do not attempt to place a gloss upon the words “no reasonable basis for the claim” or to substitute a judicial formulation for that concept. I disregard the earlier, different, procedural regime under rule 25.04 of the Supreme Court Civil Rules 1987 (SA). I bear in mind that it is necessary that the question whether there is no reasonable basis for the claim be determined in a summary way.
What is a reasonable basis for a claim will vary depending upon the nature and circumstances of the particular claim. I consider whether there is a reasonable basis for the claim separately and independently in relation to the causes of action of breach of duty of care and breach of statutory duty and separately again in relation to the CFS’s defence of statutory immunity from civil liability.
In each of the CFS’s interlocutory applications, it seeks, in the alternative to summary judgment, an order striking out the action or cross-action against it pursuant to rule 193 of the Rules.
Rule 193 empowers the Court to dismiss proceedings if the pleadings disclose no reasonable cause of action. The test for dismissal is very high. The claim must be obviously unsustainable[13] and so bad that no legitimate amendment could cure the defects.[14] The power to dismiss will only be used with great caution and in clear and obvious cases.[15]
[13] Attorney-General of Dutchy of Lancaster v London and North Western Railway Co [1892] 3 Ch 274 at 277 per AL Smith LJ; Wall v Bank of Victoria Ltd (1890) 16 VLR 2 at 4 per Hood J.
[14] Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489 at 496 per Chitty J; Morton v Arbuckle (1918) VLR 657 at 661 per Irvine CJ.
[15] Dey v Victorian Railways Commissioner (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129 per Barwick CJ.
The test for summary judgment under rule 232 is lower than the test for dismissal under rule 193.[16]
[16] Compare Ceneavenue Pty Ltd v Martin (2008) 106 SASR 1 at [80] per Debelle J (Duggan and Anderson JJ agreeing) addressing Rule 232 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 addressing High Court Rules Order 26 Rule 18 being the equivalent of Rule 193.
Beyond referring to rule 193, the CFS did not make any substantive submissions in support of its application under rule 193 as opposed to its application for summary judgment. I do not need to further consider rule 193 as its consideration is necessarily encompassed by consideration of the CFS’s application under rule 232.
Existence of a duty of care
The CFS contends that there is no reasonable basis for the claim that the CFS owed a duty of care to the landholders.
The pleaded cases on existence of duty of care
Neither Mr Proude nor Mr Visic pleads that the CFS owed a duty of care to landholders or otherwise in the course of the general exercise of its statutory powers and functions over the years. Rather, they both plead that a duty of care came into existence upon the deployment of the CFS at (and in the vicinity of) the fire on 10 January 2005.
Mr Proude relies, inter alia, upon the following facts and circumstances as giving rise to a duty of care by the CFS to the landholders:
1.the CFS had the statutory responsibility of preventing, controlling and suppressing fires and protecting life and property in fire emergencies pursuant to section 8 of the Act;[17]
[17] Fourth Statement of Claim [9].
2.the CFS had statutory power to extinguish the fire if it was likely to get out of control and to take steps to prevent it from getting out of control under sections 39(1)(b) and 54 of the Act;[18]
3.at about 3:20 pm on 10 January 2005, the CFS deployed officers and volunteers and fire fighting equipment to the location of the fire to attempt to control and extinguish it;[19]
4.by the afternoon/evening of 10 January 2005, the CFS knew or ought to have known of the risk of escape of the fire if it were not extinguished or controlled;[20]
5.the CFS had fire fighting trucks, plant and equipment, water bombing aircraft and personnel which gave it the ability and resources to fight the fire;[21]
6.the CFS deployed appliances and personnel, issued commands to all persons fighting or in a position to fight the fire and assumed responsibility for fighting the fire;[22]
8.the landholders did not have the ability to take steps themselves to extinguish or prevent the spread of the fire;[23]
9.the landholders were precluded by section 66 of the act from forming their own fire brigade on behalf of the local community without the consent of the CFS;[24]
10.the landholders were reliant or dependent on the CFS to take steps to extinguish and prevent the spread of the fire;[25]
11.the landholders held an expectation that the CFS would use its resources to fight the fire and exercise reasonable care in doing so;[26]
12.the CFS was organised in a hierarchy of command and function designed for the practicalities of fire fighting.[27]
[18] Fourth Statement of Claim [10.1] and [10.2].
[19] Fourth Statement of Claim [12].
[20] Fourth Statement of Claim [17C]-[17F].
[21] Fourth Statement of Claim [21A]-[21F].
[22] Fourth Statement of Claim [21G] first occurring.
[23] Fourth Statement of Claim [21G] second occurring.
[24] Fourth Statement of Claim [21G] second occurring.
[25] Fourth Statement of Claim [21G] second occurring.
[26] Fourth Statement of Claim [21H].
[27] Fourth Statement of Claim [21A]-[21G].
Mr Visic relies upon, inter alia, the following facts and circumstances as giving rise to the duty of care by the CFS to Mr Proude:
1.the CFS had the statutory responsibility of preventing, controlling and suppressing fires pursuant to sections 8, 10 and 15 of the Act;[28]
2.the CFS’s officers had statutory power to fight the fire pursuant to sections 39 and 54 of the Act;[29]
3.the CFS deployed officers and volunteers and fire fighting equipment to the location of the fire to attempt to control and extinguish it;[30]
4.the CFS knew or ought to have known of the risk of escape of the fire if it were not extinguished or controlled;[31]
5.the CFS had the ability and resources to fight the fire;[32]
6.the CFS assumed responsibility for fighting the fire;[33]
7.Mr Proude was vulnerable and did not have the ability to take steps to extinguish or prevent the spread of the fire;[34]
8.Mr Proude was reliant or dependent on the CFS to take steps to extinguish and prevent the spread of the fire;[35]
9.Mr Proude held an expectation that the CFS would use its resources to fight the fire and exercise reasonable care in doing so;[36]
10.the CFS was in a position to control the fire and fire fighting.[37]
[28] Third Statement of Claim on cross action by First Defendant against Second Defendant [28.1], [28.8].
[29] Third Statement of Claim on cross action by First Defendant against Second Defendant [28.8], [28.17].
[30] Third Statement of Claim on cross action by First Defendant against Second Defendant [28.3], [28.4], [28.5], [11].
[31] Third Statement of Claim on cross action by First Defendant against Second Defendant [28.3], [28.5].
[32] Third Statement of Claim on cross action by First Defendant against Second Defendant [28.4], [28.15].
[33] Third Statement of Claim on cross action by First Defendant against Second Defendant [28.14].
[34] Third Statement of Claim on cross action by First Defendant against Second Defendant [28.2].
[35] Third Statement of Claim on cross action by First Defendant against Second Defendant [28.9], [28.11].
[36] Third Statement of Claim on cross action by First Defendant against Second Defendant [28.11].
[37] Third Statement of Claim on cross action by First Defendant against Second Defendant [28.4], [28.14].
Although the CFS does not contend that there is no tenable case against it for breach or causation of loss, it is desirable to have an understanding of Mr Proude’s case on breach and causation to provide a context for consideration of the existence of a duty of care.[38]
[38] See the approach of Gleeson CJ in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at [10].
Mr Proude’s pleaded case on breach is that the CFS negligently failed:
1.to black out burning or hot spots in areas A and C within 50 metres of the swamp;
2.to create bare earth breaks by ploughing or grading or back burning stubbled paddocks in areas A and C adjacent to the swamp and parallel to Yorkies Gully Road and Settlors Road;
3.to deploy fire fighting trucks or water bombing aircraft in areas A and C.
Mr Proude’s pleaded case is that the negligence of the CFS permitted the fire to break out from the swamp into areas A and C and in turn to break out of areas A and C to burn approximately 78,000 hectares.
The statutory provisions
The CFS identifies various provisions of the Act in support of its contention that a duty of care did not exist. Mr Proude and Mr Visic rely upon the same provisions in their contention that a duty of care did exist.
When it is alleged that a statutory authority owes a duty of care in relation to potential or actual intervention to prevent or reduce loss, it is crucial to consider the legislative provisions governing the statutory authority’s activities. In Graham Barclay Oyster Pty Ltd v Ryan¸[39] McHugh J said:
[39] (2002) 211 CLR 540.
In determining whether a public authority has breached a common law duty by failing to exercise a statutory power, it is essential to examine the words and policy of the legislation. That is because the legislation may indicate that the legislature has legislated to cover the field and excluded all common law duties of care. In other cases, the imposition of a common law duty may be inconsistent with or undermine the effectiveness of the duties imposed by the statute. In some cases, the circumstances of the case — for example, active intervention by the authority or reliance by the plaintiff — may establish a duty of care. But the legislation may give the authority such a wide discretion to exercise the power in question that the tribunal of fact cannot find that the failure to exercise the power constituted a breach of the duty. [40]
[40] (2002) 211 CLR 540 at [78].
(Citation omitted)
Gummow and Hayne JJ said:
The existence or otherwise of a common law duty of care allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.
…
However, contrary to submissions put on behalf of the Attorney-General for Western Australia (as an intervener in this Court), the discernment of an affirmative legislative intent that a common law duty exists, is not, and has never been, a necessary pre-condition to the recognition of such a duty. This may be contrasted with the action for breach of statutory duty, the doctrinal basis of which is identified as legislative intention.
An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial.[41]
(Citations omitted)
and Kirby J said:
In answering the "ultimate question", in a case involving the alleged neglect of a statutory authority to utilise the statutory powers that it undoubtedly enjoys, it will obviously be essential to analyse those powers carefully. It will be necessary to attempt to derive from the language and structure of the applicable legislation, viewed as a whole, a conclusion as to whether, in the particular case, the power conferred on the authority had been converted to the obligations of a duty.[42]
[41] (2002) 211 CLR 540 at [146], [148] and [149].
[42] (2002) 211 CLR 540 at [243].
Section 6 of the Act established the CFS as a body corporate with full juristic capacity to exercise the powers of a body corporate.
The Act provided for a hierarchical organisational structure in a descending chain of command as follows:
1.     the State, commanded by the board and the chief officer;[43]
2.     CFS regional associations responsible for a CFS region commanded    by a regional officer;[44]
3.     CFS groups within a region commanded by a group officer;[45]
4.     CFS brigades within a group commanded by a brigade captain;[46]
5.     employees and voluntary workers of the CFS.[47]
[43] Country Fires Act 1989 (SA) ss 10, 12, 15 and 16.
[44] Country Fires Act 1989 (SA) ss 12(1)(a) and 16(1)(a).
[45] Country Fires Act 1989 (SA) ss 12(1)(b) and 16(1)(b).
[46] Country Fires Act 1989 (SA) ss 12(1)(c) and 16(1)(c).
[47] Country Fires Act 1989 (SA) s 7(c).
The board had strategic responsibility for the administration and control of the CFS including ensuring that it carried out it responsibilities effectively and efficiently.[48] The chief officer had tactical responsibility for CFS operations and was expected to assume command of any CFS operations for the prevention, control or suppression of fire or the protection of life or property.[49]
[48] Country Fires Act 1989 (SA) s 10.
[49] Country Fires Act 1989 (SA) s 15(2).
The responsibilities of the CFS were defined by section 8:
Subject to this Act, the C.F.S. is responsible for—
(a) the prevention, control and suppression of fires in the country;
(b) the protection of life, property and environmental assets in fire and other emergencies occurring in the country.
Section 16(6) empowered the board to appoint such other officers of the CFS (beyond the chief officer, regional officers, group officers and brigade captains) as it thought fit.
Section 39 conferred upon CFS officers a power of direction. The power was conferred on any officer appointed by the board under section 16 and, in the absence of such an officer in the field, upon any member of the CFS or alternatively any fire prevention officer, Metropolitan Fire Service officer or police officer. The power to direct included the following powers:
(1)     Subject to this section, if a C.F.S. officer is satisfied that a fire has been lit on any      land contrary to this Act, or that a fire on any land (whether lit lawfully or not) is         out of control, or is likely to get out of control, the officer may—
(a)     direct the person who lit the fire, or the owner of the land, to extinguish the             fire or to take such other steps in relation to the fire as appear necessary to                prevent it from getting out of control; or
(b)     extinguish the fire, or take such other steps in relation to the fire as appear              necessary to prevent it from getting out of control.
Section 53 provided for the board to authorise procedures for the appointment of an incident controller in relation to any given fire or situation involving imminent danger of fire. Section 53 rendered all fire brigades and other persons present at the scene of a fire subject to the control of the incident controller. Section 53 provided:
(1)    This section applies in relation to—
(a)     fire or a situation that involves imminent danger of fire;
(b)     emergencies involving the escape of a dangerous substance or a situation               that involves imminent danger of such an escape;
(c)     all other emergencies endangering, or likely to endanger, life or property and          at which no other person having lawful authority to assume command has              done so,
that occur in the country or that occur inside a metropolitan fire service district but    at which a metropolitan fire brigade is not in attendance.
(2)     All fire brigades and all persons present at the scene of the fire or other emergency    to which this section applies will be subject to the control of the incident controller       or, where an incident controller has not been appointed, the most senior member of     the C.F.S. in attendance.
(3)     In this section—
incident controller for a fire or other emergency means the person for the time        being appointed to be the incident controller for the fire or other emergency in      accordance with procedures approved by the Board.
Section 54 empowered a CFS officer, or any other member of the CFS in the absence of an officer, to take action appearing necessary or desirable for the purpose of fire fighting or protecting life or property. Section 54 relevantly provided:
(1)     A C.F.S. officer may take, or cause to be taken, any action that appears necessary     or desirable for the purpose of fire-fighting or for the purpose of protecting life or     property in any other emergency (notwithstanding that that action may result in     damage to, or destruction of, property or cause pecuniary loss to any person) and, in particular, the C.F.S. officer may—
(a)     enter or break into any land or building;
(b)     remove flammable material or any other dangerous substance, or cause         flammable material or any other dangerous substance to be removed from            any land or building; and
(c)     take possession of, protect, remove or destroy any structure; and
(d)     cause any supply of fuel or other flammable liquid, any gas or electricity, or           any other dangerous substance to be shut off or removed; and
(e)     cause firebreaks to be ploughed or cleared on any land; and
(f)    subject to the directions (if any) of a member of the police force, prohibit,              direct or regulate the movement of persons, vehicles or animals; and
(g)     take and use water or any other fire extinguishing material from any land;              and
(h)     with the consent of the owner or person in charge of any vehicle or machine,          use that vehicle or machine for the purpose of fire-fighting; and
(i)    remove or cause to be removed to such place as the officer thinks fit any               person who obstructs or interferes with, or threatens to obstruct or interfere             with, any operations under this section; and
(j)    make use of the gratuitous services of any person; and
(k)     exercise any prescribed power.
(1a)   The powers of a C.F.S. officer under subsection (1) may be exercised in the           absence of such an officer by any other member of the C.F.S.
(2)     Notwithstanding any other provision of this Act, a C.F.S. officer may, for the purpose of controlling an existing fire, light another fire, or cause another fire to be      lit.
(3)     A C.F.S. officer or other member must, before taking any prescribed action with      respect to private land or a government reserve, or property on private land or a      government reserve—
(a)     consult with the owner or person in charge of the land or reserve if that         person is in the presence of, or may be immediately contacted by, the C.F.S.                officer or other member; and
(b)     if the prescribed action would affect a government reserve, take into account          any relevant provisions of a management plan for the reserve that have been            brought to the attention of the officer or other member.
…
(8)     In this section—
prescribed action means the exercise of a power under this section that would result in damage to, or destruction of, property or cause pecuniary loss to any person.
Section 58 created an offence of hindering an officer or member of the CFS in the exercise of any power or function under the Act.

Section 66 prohibited any person, without the approval of the board, forming a group equipped to deal with fires on behalf of the local community. Section 66 provided:
(1) A person must not, without the approval of the board, be a member of a fire brigade in the country that is not a C.F.S. organisation.
Penalty: Division 8 fine.
(2) In this section—
fire brigade means a group of people equipped to deal with fires on behalf of a local community.
Section 64 conferred immunity upon persons (purportedly) exercising powers or performing functions under the Act for honest acts or omissions. Section 64 provided:
A person incurs no civil or criminal liability for an honest act or omission in the exercise or performance, or purported exercise or performance, of a power or function under this Act.
The CFS contends that all powers and functions of and associated with fighting fires were conferred by sections 39 and 54 upon individual officers and members of the CFS and not upon the CFS itself. The CFS contends that it (as distinct from its officers) therefore did not have relevant fire fighting powers which would be necessary for it to have power, and more importantly control, over a bushfire. The CFS contends that it is an essential prerequisite for finding a duty of care that the CFS had control over bushfires and this essential prerequisite is absent because of the manner in which the powers and functions were conferred by the Act. I address that contention under the heading Control below.
The CFS contends that both sections 39 and 54 conferred powers or discretions but did not impose duties or obligations. Those powers and discretions were conditional upon the formation of the requisite state of mind by the individual officer or member, namely satisfaction that a fire is or is likely to get out of control (section 39) and action appearing necessary or desirable for the purpose of fire fighting (section 54).
The mere fact that the Act conferred powers and discretions does not necessarily entail that no duty of care can arise. The interrelationship between statutory power and common law duty was explained by McHugh J in Graham Barclay Oysters Pty Ltd v Ryan[50] in the following passage:
Legislatures often vest discretionary powers in public authorities for the specific purpose of protecting the community. Some powers may be vested in the authorities for the protection of a specific class of persons who may be exposed to risks of harm that they are powerless to avoid and sometimes unable to identify. But the legislature has made these powers exercisable at the discretion of the authorities, and the common law does not seek to convert the statutory discretion into a positive common law duty to exercise it for the benefit of the public or one of its members.
...
Despite this general rule, however, cases often arise where the failure to exercise a power will constitute a breach of a common law duty of care that a public authority independently owes to an individual. If a duty of care exists, discharging the duty may require the authority to exercise the power "to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger". But it invites error to think that the common law has converted the discretionary statutory power into an affirmative duty to exercise the power. The common law cannot interfere with the exercise of the discretion and require the authority to enforce the power. To attempt to do so would bring the common law into conflict with the legislative intention that the exercise of the power be discretionary. The common law avoids the conflict by holding that in the circumstances the failure to exercise the power is a breach of a common law duty existing independently of the statute. The common law duty may or may not be an affirmative duty to take reasonable care to protect the plaintiff from harm. However, the existence of the statutory power does not create the common law duty although in some cases — particularly in reliance cases — it may be an important factor in finding that a duty of care was owed.[51]
(Citations omitted)
[50] (2002) 211 CLR 540.
[51] (2002) 211 CLR 540 at [79]-[80].
Action versus omission
The CFS contends that the common law draws a fundamental distinction between liability for acts which themselves cause or exacerbate loss, and liability for an omission to intervene in a manner which would have prevented or reduced loss caused by external events.[52]
[52] See, for example, Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [84]-[85] per McHugh J; Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215 at [127] per Crennan and Kieffel JJ.
I accept this fundamental distinction. Assigning the facts and circumstances of a particular case to one side or the other of this dichotomy is an important criterion in determining the existence of a duty of care. However, it is necessary to make several observations about this dichotomy.
First, and fundamentally, this dichotomy is not in itself determinative of the existence of a duty of care. Merely because a defendant takes action which itself causes or exacerbates loss suffered by another does not necessarily mean that the person taking action owes a duty of care to the person suffering loss. Examples where a duty of care might not exist even for loss caused by acts as opposed to omissions include governmental action involving matters of high policy[53] and action which causes pure economic loss.[54] Conversely, merely because a person’s actions did not cause or increase loss does not necessarily mean that no duty of care is owed. Examples include a duty owed by an employer to an employee to take positive steps to protect the employee from harm[55] and the duty owed by a solicitor to a client to give advice concerning risks.[56] This reality is a manifestation of the broader proposition that it is not possible to devise a single universal test which determines whether a duty of care exists in specific circumstances.[57]
[53] Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 469 - 470 per Mason J.
[54] Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1979) 139 CLR 529 at 558 per Stephen J.
[55] Czatyrko v Edith Cowen University [2005] HCA 14; (2005) 79 ALJR 839 at [12]-[16] per Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ.
[56] Austrust Ltd v Astley (1996) 67 SASR 207 at 227-228 per Doyle CJ and Olsson J (Duggan J agreeing); Zakka v Elias [2013] NSWCA 119 at [85] per Ward JA (Emmett JA and Tobias AJA agreeing).
[57] Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 at [9] per Gleeson CJ and [88] per McHugh J; Sullivan v Moody (2001) 207 CLR 562 at [47]-[54] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ.
Secondly, as formulated by the CFS, the dichotomy is not simply between act and omission: it incorporates the concept of causation of loss resulting from the act or omission. Forseeability of potential harm resulting from an act or omission is an indispensible element in finding the existence of a duty of care.[58] The nature, extent and likelihood of potential harm caused is a factor which may be taken into account in determining the existence of a duty of care. However, as formulated by the CFS, the dichotomy involves not only potential causation of loss resulting from an act or omission, but also the actual causation of loss. This renders a determination whether a duty of care exists more complex.
[58] Sullivan v Moody (2001) 207 CLR 562 at [42] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ.
Thirdly, as in the case of actions, there are different levels of omissions to act. At one extreme, a bystander might take no action whatsoever to assist a person who he or she finds bleeding on the footpath. At the other extreme, a doctor might intervene and apply a pressure bandage, but negligently omit to make it sufficiently tight to stem the bleeding. In other words, it is not sufficient merely to ask whether a case is one of act or omission: it is always necessary to ask, is there an act and, if so, what is it? Is there is an omission, and, if so, what is it an omission to do? In the infinite variety of human circumstances, the line between act and omission can become blurred.
Fourthly, where there is an omission to act, it is relevant to ask: what was the act which the defendant omitted to do? There may be a difference between omission to act tangibly as opposed to intangibly or an omission to act physically as opposed to verbally.
In the present case, Mr Proud and Mr Visic accept that the CFS did not do anything which positively caused or exacerbated the fire. Their case is that, upon deploying to extinguish or contain the fire, the CFS owed a duty to the landholders to exercise reasonable care in doing so.
The mere fact that a person has the means to prevent harm to another does not give rise to a duty of care by that person to do so. However, additional circumstances can give rise to such a duty. In Stuart v Kirkland‑Veenstra,[59] Crennan and Kiefel JJ said:
The common law generally does not impose a duty upon a person to take affirmative action to protect another from harm ... and non‑feasance. So far as concerns situations brought about by the action of the person at risk, it is the general view of the common law that such persons should take responsibility for their own actions ... The common law does recognise that some special relationships may require affirmative action to be taken by one party and are therefore to be excepted from the general rule. Examples of such relationships are employer and employee, teacher and pupil, carrier and passenger, shipmaster and crew.
...
But the position of a public authority is not the same as that of a citizen and the rule of equality is not regarded as wholly applicable . It has public functions and it has statutory powers which the citizen does not. Some powers might be effective to avert or minimise a risk of harm to particular persons or their property, but the statute might not oblige their use. The relevant concern of the common law is whether a public authority might nevertheless be considered to be under a duty of care which obliges it to exercise its powers in a particular way.
...
No guiding principle, by which an authority might be considered to be obliged to exercise its powers at common law, has been identified; the search continues.[60]
(Citations omitted)
[59] (2009) 237 CLR 215.
[60] (2009) 237 CLR 215 at [127], [129] and [131].
The high point of the CFS’s submission is that the mere fact that the CFS did not itself cause or increase the risk of harm entails that no duty of care could be owed. The CFS submits:
Governments do not control nature. It is open to government to let nature take its course. Equally, it is open to government to attempt the spread of the effects of forces of nature. But government cannot be held liable if its efforts to intervene are ineffective in circumstances where it has done nothing to increase the risk of harm. For this reason alone, the present claim against the CFS is bound to fail.
I reject that submission. Assigning the case to the category of non‑intervention or ineffective intervention is only the first step in the analysis as to the existence of a duty of care.
Authority to intervene
Where it is contended that a public authority owes a duty to exercise reasonable care when intervening for the purpose of attempting to prevent or restrict harm, there will be no duty of care if the public authority does not have legislative authority to intervene. However, the mere fact that it does have authority to intervene does not in itself entail that it owes a duty of care.
In Stuart v Kirkland‑Veenstra,[61] Gummow, Hayne and Heydon JJ said:
There can be no duty to act in a particular way unless there is authority to do so. Power is therefore a necessary condition of liability but it is not a sufficient condition.[62]
and Brennan and Kiefel JJ said:
The existence of statutory powers is necessary, but not sufficient, to give rise to a duty of care.[63]
(Citation omitted)
[61] (2009) 237 CLR 215.
[62] (2009) 237 CLR 215 at [112].
[63] (2009) 237 CLR 215 at [130].
The CFS contends that it did not have authority to intervene to fight the fire: the powers to fight the fire conferred by sections 39 and 54 of the Act were conferred upon individual officers, or members, of the CFS and not the CFS itself.
60The CFS’s contention is too superficial. As observed at [34]-[40] above, the Act established a clearly hierarchical organisational structure. Officers and members of the CFS exercising powers under section 39 and 54 are subject to supervision and direction by the incident controller and ultimately by the chief officer and the board. It is self‑evident that, to be able to efficiently fight fires, it is essential that the CFS have a hierarchical organisational structure with a clear chain of demand from the board and chief officer downwards.
At the fire front, the exercise of coercive powers to direct civilians, enter land, commandeer water and materials, direct movements etc, is exercised by individual officers and members, but those officers and members are themselves under the overall supervision and control of the CFS as a body corporate by its board and chief officer.
Control
The CFS contends that it is essential for the existence of a duty of care that the CFS exercised “control” over the fire. The CFS contends that it did not have “control” over the fire in the requisite sense.
The CFS relies upon a series of decisions by the High Court which have discussed the meaning and importance of control: Pyrenees Shire Council v Day;[64] Graham Barclay Oysters Pty Ltd v Ryan[65] and Stuart v Kirkland‑Veenstra.[66]
[64] [1998] HCA 3; (1998) 192 CLR 330.
[65] (2002) 211 CLR 540.
[66] (2009) 237 CLR 215.
In Pyrenees Shire Council v Day,[67] the Council had statutory power to serve a notice on the owner or occupier of land with a unsafe chimney requiring that it be made safe. It was an offence for the owner or occupier not to comply with the notice. In default of compliance by the owner, either the occupier or the Council was empowered to carry out works to make the chimney safe. The Council inspected the chimney of a property owned by Mr and Mrs Markos at the request of the then tenant, Mr Tzavaras. The Council inspected the chimney and found it was unsafe. The Council wrote a letter addressed jointly to Mr Tzavaras and Mr Markos, which was received only by Mr Tzavaras, and which directed that the fireplace not be used but did not require it to be repaired. The new tenant, Mr Stamatopoulos, lit a fire which escaped and destroyed the property as well as damaging the shop next door owned by the Days. The Days sued, inter alia, the Council for breach of duty of care. The High Court held that the Council owed a duty of care to the Days. In the course of his reasons, Gummow J said:
Such a situation of control is indicative of a duty of care. The Shire had statutory powers, exercisable from time to time, to pursue the prevention of fire at No 70. This statutory enablement of the Shire "facilitate[d] the existence of a common law duty of care", but the touchstone of what I would hold to be its duty was the Shire's measure of control of the situation including its knowledge, not shared by Mr and Mrs Stamatopoulos or by the Days, that, if the situation were not remedied, the possibility of fire was great and damage to the whole row of shops might ensue. The Shire had a duty of care "to safeguard others from a grave danger of serious harm", in circumstances where it was "responsible for its continued existence and [was] aware of the likelihood of others coming into proximity of the danger and [had] the means of preventing it or of averting the danger or of bringing it to their knowledge".[68]
(Citations omitted)
[67] (1998) 192 CLR 330.
[68] (1998) 192 CLR 330 at [168].
In Graham Barclay Oysters Pty Ltd v Ryan,[69] Wallis Lake became contaminated by human faeces, which contaminated oysters in the lake which caused Ryan to contract hepatitis. Ryan sued not only the grower/distributor, Graham Barclay Oysters, but also the Great Lakes Council and the New South Wales Government on the basis that they had general regulatory powers to ensure public health and safety and ought to have exercised those powers to ensure that the oysters did not become contaminated. The High Court held that the Council and the State owed no duty of care to consumers of oysters. Gleeson CJ said:
[69] (2002) 211 CLR 540.
The proposition that the New South Wales government exercised substantial managerial control over the Wallis Lake oyster industry requires further analysis. If taken at face value, it virtually forecloses further debate. Control is a well established basis for the existence of a duty of care in a public authority or a private citizen. Managerial control, if it existed, would seem to equate the position of the State with that of the Barclay companies, which admittedly owed a duty of care. But what exactly does it mean to say, in a market economy, that the State has substantial managerial control over an industry conducted by private enterprise?
...
This demonstrates two things. First, the proposition that the State government had substantial managerial control over the oyster industry is, at best, an over-simplification. Secondly, the proposition that the State had a legal duty of care, owed to oyster consumers, obliging it to exercise greater control (and, presumably, to permit less industry self-regulation) takes the debate into the area of political judgment. By what criterion can a court determine the reasonableness of a government's decision to allow an industry a substantial measure of self-regulation?[70]
[70] (2002) 211 CLR 540 at [20] and [27].
(Citations omitted)
McHugh J said:
Where a plaintiff claims that a public authority owed him or her an affirmative duty of care in a situation that has not yet been recognised by the common law, the court must examine a number of matters to determine whether the duty existed. I pointed to these matters in Crimmins v Stevedoring Industry Finance Committee:
...
• Was the authority in a position of control and did it have the power to control the situation that brought about the harm to the injured person?
...
Nor does the bare fact that the Executive government has exercised its powers from time to time create any duty to exercise its powers. Such exercises of power do not constitute "control" of an activity in the sense that that expression is used in the law of torts. They are merely particular exercises of powers that were invested in the Executive government for the benefit of the general public to be exercised at the discretion of the Executive government.
...
But these matters [the exercise of general powers identified by the trial judge as constituting control] mean no more than that the Executive government of the State was exercising or could exercise various powers given to it by its legislature. They do not constitute "control" of the industry in any relevant sense.[71]
[71] (2002) 211 CLR 540 at [84], [91] and [93].
Gummow and Hayne JJ said:
It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; ...
The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority. It assumes particular significance in this appeal. This is because a form of control over the relevant risk of harm, which, as exemplified by Agar v Hyde, is remote, in a legal and practical sense, does not suffice to found a duty of care.
... in Pyrenees Shire Council v Day, the Shire held a significant and special measure of control over the safety from fire of persons and property at the relevant premises. That degree of control was the touchstone of the Shire's duty to safeguard others from the risk of fire in circumstances where the Shire had entered upon the exercise of its statutory powers of fire prevention and it alone among the relevant parties knew of, and was responsible for, the continued existence of the risk of fire. ...
The Council in the present appeal, by contrast, exercised a much less significant degree of control over the risk of the harm that eventuated. At no stage did the Council exercise control, let alone significant or exclusive control, over the direct source of harm to consumers, that is, the oysters themselves. ...
In broad terms, the Council's statutory powers enabled it to monitor and, where necessary, to intervene in order to protect, the physical environment of areas under its administration. However, the conferral on a local authority of statutory powers in respect of activities occurring within its boundaries does not itself establish in that authority control over all risks of harm which may eventuate from the conduct therein of independent commercial enterprises. ... As the trial judge noted, the Council had no direct responsibility for the operation of the oyster industry or the quality or safety of Wallis Lake oysters. It did not control the process by which commercial oyster growers cultivated, harvested and supplied oysters, nor the times or locations at which they did so. The Council has not been given, by virtue of its statutory powers, such a significant and special measure of control over the risk of danger that ultimately injured the oyster consumers so as to impose upon it a duty of care the breach of which may sound in damages at the suit of any one or more of those consumers.[72]
(Citations omitted)
and Kirby J said:
[I]n Dutton v Bognor Regis Urban District Council ... Lord Denning suggested that the basis of the Council's liability lay in "control". This was a notion said by his Lordship to lie somewhere between "power" and "duty". Although that explanation was rejected by Lord Wilberforce in Anns, it is to be noticed how the concept of "control" on the part of a statutory authority is now re-emerging as crucial in this area of legal discourse.
...
The State and its agencies were not in control of the oysters or their manner of harvesting.[73]
(Citations omitted)
[72] (2002) 211 CLR 540 at [149], [150]-[152] and [154].
[73] (2002) 211 CLR 540 at [243] and [248].

In Stuart v Kirkland‑Veenstra,[74] Mr Veenstra committed suicide one afternoon at his home by sitting in his car with a hose leading from the exhaust pipe to the interior. Early that morning, he had been sitting in his car in a carpark with the hose leading from the exhaust pipe to the interior but the engine not running. Two police officers observed this and spoke to him. He told them that, although he had been about to do something stupid, he had changed his mind and was going home to talk to his wife. His widow sued the police officers and the State of Victoria for breach of duty of care. Section 10 of the Mental Health Act 1986 (Vic) empowered a police officer to apprehend a person appearing to be mentally ill if he or she had reasonable grounds for believing that the person was likely to attempt suicide. The High Court held that there was no duty of care. Gummow, Hayne and Heydon JJ said:
[74] (2009) 237 CLR 215.
the premise for the plaintiff's argument was that the officers owed the asserted duty because they, as members of the police force, had a particular power to intervene.
...
In the present matter, as in a number of cases about the exercise of statutory power, it is the factor of control that is of critical significance. It was not the officers who controlled the source of the risk of harm to Mr Veenstra; it was Mr Veenstra alone who was the source of that risk. For the reasons that have been expressed in connection with consideration of the value of personal autonomy, this factor is of predominant importance.
...
the police officers did not control the source of the risk to Mr Veenstra as would have been the case if he had been a prisoner in custody ... No doubt it can ... be said that they were in a position to control or minimise the occurrence of the observed risk (in this case because they had the power given by s 10 of the Mental Health Act). But considerations of the same kind will almost always be present when a passer-by observes a person in danger. The passer-by can see there is danger; the passer-by can almost always do something that would reduce the risk of harm. Yet there is no general duty to rescue. ...
Contrary to the plaintiff's submissions, this was not a case in which principles of the kind examined in Pyrenees Shire Council v Day are engaged. In that case, a public authority had entered upon the exercise of its statutory powers with respect to a particular subject-matter (fire prevention). The authority was held to have owed a duty to take reasonable care in exercising those powers. But the case was a particular example of the general proposition that "when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered".[75]
(Citations omitted)
and Crennan and Kiefel JJ said:
In Pyrenees Shire Council v Day Gummow J considered that the measure of control which the Council had with respect to the prevention of fire, and which included its knowledge of the risk to the plaintiff's property, was the touchstone of its liability. In Brodie v Singleton Shire Council it was said that, whatever be the significance now of the distinction between misfeasance and non-feasance, powers may give a public authority such a significant and special measure of control regarding the safety of persons as to impose a duty on the authority to exercise them. The importance of control as a basis for the existence of a duty of care was adverted to by Gleeson CJ in Graham Barclay Oysters Pty Ltd v Ryan and was referred to by Gummow and Hayne JJ as a factor of fundamental importance in discerning a duty of care on the part of a public authority.
...
The power given by s 10(1) of the Act is not expressed to oblige a police officer to apprehend a person who fulfils the description there provided - a mentally ill person who has recently attempted to suicide or to harm themselves or some other person or is likely to do so. There may be circumstances where those indicia are present but an officer is nevertheless justified in not apprehending a person. This may account for the choice implied by the word "may" in the sub-section. The common law may not interfere with the exercise of a discretion. No factors relevant to the exercise of such a discretion were said to be present in this case, if the power was enlivened. [76]
(Citations omitted)
[75] (2009) 237 CLR 215 at [100], [114] and [116]-[117].
[76] (2009) 237 CLR 215 at [132], [137] and [144].
In Graham Barclay Oysters, the control said by Ryan to be exercisable by the Council and the State was abstract: general powers to regulate public health and safety. The Council and the State had not in fact exercised specific regulatory control. Ryan’s case was that they ought to have done so. In Kirkland-Veenstra, it was contended the police officers ought to have exercised physical control, but the police officers did not exercise their discretion to exercise any control. In Pyrenees Shire Council, the control which the Days contended the Council should have exercised was regulatory. The Council had begun to exercise its powers, to the extent that it had inspected the fireplace, but elected not to issue a notice requiring rectification.
By contrast with the Graham Barclay Oysters’ case and Kirkland-Veenstra’s case, the type of control potentially exercised by a fire authority such as the CFS incorporates physical control, verbal control and regulatory control. The CFS’s officers are empowered to enter physically upon land, create physical fire breaks and take other containment measures and fight fire physically with water and other devices. They are empowered to give directions to landholders in the vicinity of a fire. In contrast to the Graham Barclay Oysters’ case and Kirkland-Veenstra’s case, in the present case the CFS chose to intervene in an attempt to extinguish or contain the fire. The comments by the High Court in Graham Barclay Oysters and Kirkland-Veenstra concerning the element of control which was missing in those cases are not directly applicable to the present case.
The CFS contends that bushfires are a force of nature not capable of “control” of the type which is required to found a duty of care. The CFS contends that:
[B]ushfires are a natural force which cannot always be coped with, and are often not coped with until they have run or substantially run their course ... Governments do not control nature ... The existence of legal power does not bestow upon the government or its instrumentalities or authorities the resources to control the effects of nature. A bushfire can start due to natural factors such as lightening, accidental events such as a spark from a car or piece of farm machinery, or from a deliberate act such as that of a fire bug. None of those causes is within the control of a fire authority in an immediate sense ... A bushfire can spread, as bushfires spread in the present case, across thousands of hectares in a short period of time. Its spread is subject to factors such as temperature, humidity, wind, terrain, and the level of fuel in the vicinity. None of those factors is within the control of a fire authority ...
Even if the CFS ... has a relevant statutory power in respect of the fighting of bushfires, it does not constitute “control” in the relevant sense, since it is a notorious fact that even a highly resourced authority would not be in a position to prevent a fire spreading in every case.
... It is one thing to have powers which, if properly exercised, will remove or reduce the risk that a fire will start (Pyrenees Shire Council v Day). It is another to have powers which, depending on the circumstances, may result in a fire caused by a natural event or lit by another being stopped.
To the extent that control is an essential element in the existence of a duty of care, the mere fact that some bushfires may be uncontrollable does not mean that every bushfire is uncontrollable. The submissions made by the CFS quoted above are good reasons why the CFS does not owe a generalised duty of care to the public to be prepared to fight fires when they may arise. However, they do not comprise a reason why, once the CFS has deployed to fight a specific fire in specific circumstances, the CFS would not owe a duty of care to exercise reasonable care to attempt to extinguish and control that fire.
An allied submission made by the CFS is that it is not part of Mr Proud’s or Mr Visic’s case against the CFS that it had the ability to extinguish or contain the fire if it had exercised reasonable care. Both Mr Proud and Mr Visic take issue with that contention.
The CFS contends that Mr Proud does not plead that it was within the capacity of human efforts to contain the fire.
Mr Proud pleads that the CFS had the ability and resources to fight the fire;[77] the magnitude or complexity of the risk of the fire was such that the landholders were not able to take steps for their own complete protection and were dependent on the CFS to do so;[78] and the CFS had the ability on exercising reasonable care to contain the fire within the swamp or alternatively within area C.[79] The manner in which Mr Proud makes these pleas is subject to criticism by the CFS in that the plea of the last matter forms part of the pleading of causation which arises logically after the existence of duty of care and the establishment of negligence. The pleading is technically defective in this sense. However, the CFS is applying for summary judgment by reference to Mr Proud’s case and not by reference to technical pleading defects. In assessing whether Mr Proud has a reasonable basis for his action, I am obliged to assess his case and not matters of technical pleading.
[77] Fourth Statement of Claim [21F].
[78] Fourth Statement of Claim [21G].
[79] Fourth Statement of Claim [25].
Mr Visic pleads that the CFS had the fire‑fighting equipment and human resources necessary to fight the fire which Mr Proud lacked;[80] and that the CFS was in a position of control and had the power to control the situation in that they had the resources (legal power and practical ability to deploy those resources) which if properly deployed would have prevented the fire from spreading to Mr Proud’s property.[81] Mr Visic pleads these matters amongst the matters, inter alia, alleged to give rise to a duty of care by the CFS to Mr Proud. Mr Visic’s pleading in this respect is not subject to the technical criticism which the CFS makes of Mr Proud’s pleading.
[80] Third Statement of Claim on Cross Action by First Defendant against Second Defendant [28.4]
[81] Third Statement of Claim on Cross Action by First Defendant against Second Defendant [28.4] and [28.15].
The CFS makes a different criticism of Mr Visic’s pleading. It contends that paragraph 28.4 relates to subsequent issues of causation and breach rather than the anterior question whether there exists a duty of care. That criticism is inconsistent with the criticism which the CFS makes of Mr Proud’s pleading, but in any event I reject the criticism. The ability of the CFS to control the fire in respect of which it deployed is an important aspect going to the existence of duty of care for the reasons given above.
A single dimension or a multi-faceted enquiry?
The CFS contends that, absent the requisite type of control (which it contends is missing), there are no other factors capable of giving rise to a duty of care. General reliance as a criterion for the existence of a duty of care has been discounted by the High Court. There is and can be no specific reliance on the cases of Proud and Visic and there is no relevant vulnerability of the landholders.
In Crimmins v Stevedoring Industry Finance Committee,[82] McHugh J said:
[82] [1999] HCA 59; (1999) 200 CLR 1.
In my opinion, therefore, in a novel case where a plaintiff alleges that a statutory authority owed him or her a common law duty of care and breached that duty by failing to exercise a statutory power, the issue of duty should be determined by the following questions:
1.Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.
2.By reason of the defendant's statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.
3.Was the plaintiff or were the plaintiff's interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.
4.Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.
5.Would such a duty impose liability with respect to the defendant's exercise of "core policy-making" or "quasi-legislative" functions? If yes, then there is no duty.
6.Are there any other supervening reasons in policy to deny the existence of a duty of care (eg, the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty.
...
In earlier cases, it was common to refer to the concept of general reliance or dependence as a necessary condition for imposing a duty of care on a statutory authority. As I remarked in Perre v Apand Pty Ltd, however, while the concept of general reliance has been criticised, properly understood, the concept was merely one way of testing for an important requirement in the determination of duty of care — how vulnerable is the plaintiff as the result of the defendant's acts or omissions.[83]
(Citations omitted)
[83] (1999) 200 CLR 1 at [93] and [100].
In Graham Barclay Oysters Pty Ltd v Ryan,[84] Gummow and Hayne JJ said:
[84] (2002) 211 CLR 540.
An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. In particular categories of cases, some features will be of increased significance.[85]
[85] (2002) 211 CLR 540 at [149].
(Citations omitted)
Kirby J said:
The adoption of a notion that a range of other factors, sometimes called "salient factors", must be considered in order to determine the existence of a duty of care in a particular case. A cornucopia of verbal riches has been deployed to identify what, in given proceedings, these "salient features" will be. ... Many of them are helpfully collected by Callinan J in these appeals (vulnerability, power, control, generality or particularity of the class, the resources of, and demands upon the "authority", the "core, or ... non-core" functions or relation to "a matter of policy or executive action" and so on).
...
The reference to the "particular case" will, in turn, invoke a consideration of the multitude of special features of the relationship between the parties that I take it the multi-factorial or "salient features" approach requires.
...
Thus we seem to have returned to the fundamental test for imposing a duty of care, which arguably explains all the attempts made so far. That is, a duty of care will be imposed when it is reasonable in all the circumstances to do so.[86]
(Citations omitted)
and Callinan J said:
I return to … the statement of Earl Cairns LC which requires that there be something in all of the circumstances, including of course the terms of the conferral of the powers, which requires that the power be coupled with a duty; or, as Hayne J put it in Brodie, "[something in] the whole range of circumstances relevant upon a question of statutory interpretation"; ...
True it may be, that vulnerability, power, control, generality or particularity of the class, the resources of, and demands upon the authority, may each be, in a given case, a relevant circumstance, but none should, I think, of itself be decisive.[87]
(Citations omitted)
[86] (2002) 211 CLR 540 at [236], [243]-[244].
[87] (2002) 211 CLR 540 at [310], [320]-[321].
In Stuart v Kirkland‑Veenstra,[88] Gummow, Hayne and Heydon JJ said:
Evaluation of the relationship between the holder of the power and the person or persons to whom it is said that a duty of care is owed will require examination of the degree and nature of control exercised over the risk of harm that has eventuated, the degree of vulnerability of those who depend on the proper exercise of the relevant power, and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. Other considerations may be relevant.[89]
and Crennan and Kiefel JJ said:
Different factors have been identified, from time to time, as relevant to the existence of a duty of care ...
The vulnerability of a plaintiff was referred to in Pyrenees Shire Council v Day as an aspect of the plaintiff's supposed reliance upon an authority to use its powers. A focus on vulnerability may in part explain the decision in Crimmins v Stevedoring Industry Finance Committee. It has not been universally accepted as a useful analytical tool. In Graham Barclay Oysters Pty Ltd v Ryan, Gummow and Hayne JJ treated the degree of a plaintiff's vulnerability as part only of an evaluation as to whether a relationship may be seen to exist between a statutory authority and the class of persons in question.[90]
[88] (2009) 237 CLR 215.
[89] (2009) 237 CLR 215 at [113].
[90] (2009) 237 CLR 215 at [132]-[133].
Decisions by the High Court emphasise that a multi-faceted inquiry is required to determine whether there exists a duty of care in a category not clearly established by earlier decisions. Reference is to be made to notions including control, vulnerability, reliance and dependence. It is not possible to elevate one single factor and say that it forms the sole criterion for determining the existence of a duty of care.
Duty to person or public
In Graham Barclay Oysters Pty Ltd v Ryan¸[91] Gleeson CJ said:
[91] (2002) 211 CLR 540.
Accepting that local government authorities, and State governments, have responsibilities for public health and safety, those responsibilities are owed to the public. Mr Ryan must establish that the State, and the Council, owed a duty of care to him, as a consumer of Wallis Lake oysters. If such a duty exists, then presumably a similar duty is owed to all consumers of all potentially contaminated food and, perhaps, to all persons whose health and safety might be affected in consequence of governmental action or inaction.
…
Here we are concerned with the problem of deciding, in a case where the government had certain powers, whether it is accountable, through the law of negligence, for not exercising its powers, or for not exercising them sufficiently. To apply that form of legal accountability requires the identification, not merely of a power, but also a duty; a duty of care owed to a citizen or a class of citizens.
The power given by 189 is a power to protect the public, not a specific class of persons. Similar powers, covering a wide range of activities, are given to Ministers and government authorities in the interest of public health and safety. A legislative grant of power to protect the general public does not ordinarily give rise to a duty owed to an individual or the members of a particular class.[92]
[92] (2002) 211 CLR 540 at [8], [15] and [32].
(Citations omitted)
McHugh J said:
Legislatures often vest discretionary powers in public authorities for the specific purpose of protecting the community. Some powers may be vested in the authorities for the protection of a specific class of persons who may be exposed to risks of harm that they are powerless to avoid and sometimes unable to identify ...
If a duty of care exists, discharging the duty may require the authority to exercise the power "to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger”.
…
Where a plaintiff claims that a public authority owed him or her an affirmative duty of care in a situation that has not yet been recognised by the common law, the court must examine a number of matters to determine whether the duty existed. I pointed to these matters in Crimmins v Stevedoring Industry Finance Committee … Did the public authority know, or ought it to have known, of an existing risk of harm to the plaintiff or, in some cases, to a specific class of persons who included the plaintiff (rather than a risk to the general public)?[93]
(Citations omitted)
and Gummow and Hayne JJ said:
The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence.
…
An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered.[94]
[93] (2002) 211 CLR 540 at [79], [80] and [84].
[94] (2002) 211 CLR 540 at [146] and [149].

Graham J in dissent made a detailed analysis of the Rural Fires Act 1997 (NSW) and of previous authorities and concluded that no duty of care could be found to have arisen.
In Warragamba Winery Pty Ltd v New South Wales (No 9),[111] two independent bushfires began on 24 December 2001 in the Blue Mountains National Park. One was at Brereton Road and the other at Mount Hall. The Rural Fire Service elected to deploy its local resources to the Brereton Road fire in priority over the Mount Hall fire. The following day, the Mount Hall fire jumped the Warragamba Dam and spread east, destroying the plaintiffs’ properties. The plaintiffs’ case was that the Rural Fire Service initially in breach of a duty of care took no steps to put out the fire and sent no ground crews to fight the fire (deploying instead to Brereton Road). Their case was that, when a helicopter was sent later in the afternoon to dump water on to the fire, it was too little too late. Their case was that they should also have been warned, in which case they could have protected their own properties. Walmsley AJ held that the Rural Fire Service owed no duty of care to the plaintiffs.
[111] [2012] NSWSC 701.
The plaintiffs contended that the existence of a duty of care should be decided by answering the six questions proposed by McHugh J in Crimmins v Stevedoring Industry Finance Committee[112] and reiterated in Graham Barclay Oysters Pty Ltd v Ryan.[113] Walmsely AJ answered the second and third questions (control and vulnerability) in the negative and considered that in any event policy reasons militated against a duty of care. He said:
McHugh J's second enquiry was whether the authority was in a position of control and had the power to control the situation which brought about the harm. In Crimmins that involved directing the plaintiff to work in a dangerous environment. Here the fire was caused by a lightning strike. No power or control in the defendants could stop a fire from being started by lightning strike. They could not be said to have had control over it. It is true the defendants had control over who could go into the Park and the Area, but that is not what this enquiry relates to. It is control of the harmful cause of the damage which is relevant. Most cases where control is relevant, as the defendants pointed out, involve dangerous premises, which are static. Some involve things which have been manufactured: Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council. This is not such a case. As the High Court said in Burnie Port Authority at 529, even an occupier under the ignus suus rule is not liable for the escape of fire from premises not caused by the occupier but by an act of God or a stranger.
The third enquiry concerns whether the injured person or his or her interests were vulnerable, in the sense that he or she could not reasonably be expected to safeguard himself or herself adequately from harm. As the defendants argued, the plaintiffs conceded, by implication, that they were not relevantly vulnerable, by arguing that with notice of the fire, they could have looked after their properties or had them looked after. But in any event McHugh J was not talking about any general vulnerability such as that of properties close to bush to be attacked by fire. Rather, he was concerned with a plaintiff who is under a defendant's control, such as a worker, who had to work on an asbestos affected ship. The plaintiffs here were no more vulnerable than other members of the public. The defendants could not have been expected to have concentrated their attentions on individual plaintiffs. They each had to consider the community as a whole. That included making choices, such as between fighting one fire or another, or between the assets of individuals, when deciding which house to save, and which house should be left to take the brunt of the fire so others could be saved. In Brodie, Hayne J said at [308] of this factor, it, with general reliance, was not a useful analytical tool, and was a legal fiction.
...
The fifth query was whether the imposition of a duty of care would impose liability with respect to the defendant's exercise of "core policy-making" or "quasi-legislative" functions. I accept the defendants' submission that this called for an affirmative answer, because to say the agencies should have been able to put out the fire and warn the individual plaintiffs necessarily raised the issue of the availability of resources. On 24 December there was the issue raised as to availability of additional aircraft. As to 24 to 25 December, there was raised the availability of personnel to issue and convey warnings, as well as a change of policy to their approach about giving warnings concerning specific fires. These issues raised matters such as the need for more funding, or an alteration in the way funds were used, and for different policies. They also raised policy questions, such as whether it was appropriate to keep a helicopter available for a possible quick exit from a fire of fire crew, although that meant keeping the helicopter unavailable for other duties. That was what (as I find below) was involved in Mr De Govrik's decision in conjunction with Mr Wolter, concerning the men at Camp Creek. Another decision relevant here of the type one would expect a court to be reluctant to intrude in, was a policy decision such as was made here to keep available the Heli26 the plaintiffs argued should have been sent to Mount Hall.
The sixth query was whether there is any supervening policy reason which denies the existence of a duty of care. Some of the matters relevant to the fifth query are relevant in answering this. But additionally, as the defendants argued, the RFS has obligations, such as the need to fight fires on behalf of the community, and to protect the safety of its crews, which would conflict with obligations to the plaintiffs of the kind they have argued for. The problems of imposing a duty of care when to do so would impose conflicting duties was discussed by the High Court in Sullivan v Moody; Thompson v Connon.[114]
(Citations omitted)
[112] [1999] HCA 59; (1999) 200 CLR 1 at [63].
[113] (2002) 211 CLR 540 at [84].
[114] Warragamba Winery Pty Ltd v State of New South Wales (No 9) [2012] NSWSC 701 at [707], [708] [710] and [711].
The facts in Warragamba Winery were materially different to the present case. In that case, there was a conflict of priorities between the Brereton Bend Fire and the Mount Hall fire. The Rural Fire Service sent ground crews to fight the Brereton Bend Fire. The plaintiffs’ case was not that, upon deployment to fight the Mount Hall, the Rural Fire Service was negligent but rather that it did not deploy ground crews to Mount Hall at all when it should have.
In Electro Optic Systems Pty Ltd v The State of New South Wales,[115] Higgins CJ in the trial of Mr West’s action against the New South Wales Rural Fire Service dismissed the claim because section 43 of the Civil Liability Act 2002 (NSW) provided that an act or omission of a public authority did not constitute a breach of duty unless it was so unreasonable that no authority could properly consider the act or omission to be a reasonable exercise of its functions. However, before reaching that conclusion, Higgins CJ upheld the existence of a duty of care.[116] This was made plain by his discussion of the case against the Australian Capital Territory (which was no longer a party to the action). He said:
For reasons explained in relation to NSW, I am of the view that the Territory owed a duty of care at common law to take reasonable steps to protect persons and property in the Territory from loss or damage by fire. To that end it has established dedicated rural and metropolitan fire services. That, as I have explained, distinguishes emergency services from the usual rule that no person is obliged to go to the aid of another in distress unless they have caused or contributed to the situation of peril or has some special duty or relationship. In my view, the dedicated fire services and by analogy other services created to protect the public have a duty to act where they reasonably can, so far as that is consistent with any relevant statutory provision. There are, as I have noted, issues which are matters of legislative or executive policy that are not capable of judicial determination. An example would be conservation policy which might lead to dangerous fuel loads in bushland areas. As the ACT is no longer a party it is not necessary further to consider these matters.
…
The situation of the NSW and ACT authorities is closely analogous to that of the council in Pyrenees Shire Council v Day.[117]
[115] [2012] ACTSC 184.
[116] [2012] ACTSC 184 at [298]-[337] and [379].
[117] [2012] ACTSC 184 at [381] and [385].
The whole picture
Mr Proude and Mr Visic essentially rely upon a combination of degrees of control by the CFS of the fire fighting effort to extinguish or contain the fire, the landholders’ vulnerability to effective protection from the fire by the CFS, the landholders’ dependence upon the CFS to extinguish or contain the fire and assumption of responsibility by the CFS towards the landholders for fighting the fire.
The CFS contends that, for the reasons described above under each sub-heading, the CFS did not have control or sufficient control, the landholders were not vulnerable or sufficiently vulnerable to protection by the CFS, the landholders were not dependent or sufficiently dependent upon the CFS and the CFS did not assume or sufficiently assume responsibility for fighting the fire. The CFS contends that in any event the absence of control or a sufficient degree of control by the CFS of the fire is fatal to the existence of a duty of care.
It is not appropriate to compartmentalise the salient features of the relationship between the CFS and the landholders. It is necessarily a multi-faceted inquiry.
At trial, it may be expected that detailed evidence will be led concerning the actions taken and directions given by the CFS and the interaction between the CFS and landholders at the scene of the fire. A three dimensional picture will emerge of the circumstances at and in the vicinity of the fire. It will then be possible to provide a proper and adequate answer to the multi-faceted inquiry which the High Court has said is required to determine the existence of a duty of care.
At the present stage of the action, I have only the bare bones of the pleadings. The pleadings perform the function of defining Mr Proude’s and Mr Visic’s case at a level of generality, defining the issues and giving to the CFS notice of the case it has to meet for the purpose of trial. They necessarily provide a two dimensional picture without any of the resolution or depth of the picture which will emerge at trial.
In relation to all of the aspects of the multi-faceted inquiry, the provisions of the Act are important. It is relevant that the CFS was charged with the general statutory responsibility of preventing and controlling fires in the country and that the landholders were precluded, without consent of the CFS, from forming their own fire brigade on behalf of the local community. It is relevant that sections 39 and 54 conferred powers of direction and fire fighting upon individual officers and members of the CFS, but at the same time the Act established a hierarchical chain of command under which CFS members and officers were subject to command from above.
On the face of the pleaded cases of Mr Proude and Mr Visic, there is a reasonable basis for the claims insofar as they depend upon establishing the existence of a duty of care. On the face of the pleadings, the CFS did exercise a degree of control over the fire and the fire fighting efforts. Whether it was sufficient control for the purposes of giving rise to a duty of care can only be determined at trial. Similarly, there was a degree of vulnerability and dependence of the landholders on the CFS in relation to fighting the fire and a degree of assumption of responsibility by the CFS. Again, whether, in conjunction with all the other circumstances, that was sufficient to give rise to a duty of care can only be determined at trial.
The decisions of the Court of Appeal of the Australian Capital Territory in New South Wales v West, of Higgins CJ in Electro Optic Systems Pty v The State of New South Wales and of Lord MacPhail in Burnett v Grampian Fire and Rescue Service suggest that Mr Proude and Mr Visic have a reasonable basis for their claim. It is true that the decision in New South Wales v West was under the equivalent of rule 193 of the Rules, which imposes a higher threshold than for summary judgment. However, the decision of Lord MacPhail under the Scottish procedure of debate on a plea to relevancy involves a higher threshold than under rule 193 and the decision by Higgins CJ in Electro Optic Systems Pty Ltd was a decision at trial. The decision of the English Court of Appeal in Capital & Counties Pty Ltd suggests that no duty of care would be owed by the CFS. The decision of Walmsley AJ in Warragamba Winery Pty Ltd tends against the existence of a duty of care but was on materially different facts and was after a trial. The fact that there are authorities which point in different directions does not entail that Mr Proude and Mr Visic do not have a reasonable basis for their claim.
The CFS fails on its application for summary judgment on the breach of duty of care causes of action.
Existence of a statutory duty
Mr Visic pleads that the CFS owed statutory duties to Mr Proude to:
1.prevent, control and suppress fires and to protect property in fires in the country in South Australia in an effective and efficient way;[118]
2.ensure that the CFS carried out its responsibilities;[119]
3.manage the human and material resources of the CFS so as to achieve the greatest possible efficiency in their deployment and use;[120]
4.provide or arrange for training and practice of CFS members;[121]
5.carry out the necessary planning and investigation to determine the nature and extent of CFS resources required in each region and area and inspect the CFS organisations and report on their state of efficiency;[122]
6.prepare and maintain plans for fighting fires;[123]
7.establish and maintain an efficient communication system;[124]
8.ensure that the chief officer commanded CFS fire fighting operations in an effective and efficient way.[125]
[118] Third Statement of Claim on Cross action by First Defendant against Second Defendant [36], [37.1] and [38.1].
[119] Third Statement of Claim on Cross action by First Defendant against Second Defendant [37.2].
[120] hird Statement of Claim on Cross action by First Defendant against Second Defendant [37.3].
[121] Third Statement of Claim on Cross action by First Defendant against Second Defendant [37.5] and [38.4].
[122] Third Statement of Claim on Cross action by First Defendant against Second Defendant [37.4] and [38.2].
[123] Third Statement of Claim on Cross action by First Defendant against Second Defendant [37.6].
[124] Third Statement of Claim on Cross action by First Defendant against Second Defendant [37.7].
[125] Third Statement of Claim on Cross action by First Defendant against Second Defendant [37.9] and [38.1].
The CFS contends that Mr Visic does not have a tenable claim that it owed to Mr Proude the statutory duties alleged.
In Bryne v Australian Airlines Ltd,[126] Brennan CJ, Dawson and Toohey JJ said:
A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection. The question is one of the construction of the statute, although as Dixon J pointed out in O'Connor v S P Bray Ltd, an examination of the statute "will rarely yield a necessary implication positively giving a civil remedy". One generalisation that can be made is that where the persons upon whom the statutory obligation is imposed are under an existing common law duty of care towards the persons whom the statute is intended to benefit or protect, the statutory prescription of a higher or more specific standard of care may, in the absence of any indication of a contrary intention, properly be construed as creating a private right. Thus it is that Factories and Shops Acts and other legislation designed to protect the health and safety of employees in the workplace have been held to impose duties the breach of which gives rise to a right to sue for damages.[127]
(Citations omitted)
[126] (1995) 185 CLR 410.
[127] (1995) 185 CLR 410 at [424].
The statutory duties pleaded by Mr Visic encompass duties at a very high level which would be owed, if to anyone, to all members of the public in South Australia. They encompass a general duty to prevent, control and suppress fires in the country in South Australia in an effective and efficient way. They encompass duties to manage and train CFS members, manage material resources, plan the nature and extent of resources required, prepare fire fighting plans, and establish an efficient communication system. If such statutory duties are owed, they were capable of being breached months or years before 10 January 2005.
To the extent that the Act imposes obligations of this sort, it cannot be said that they are imposed “for the protection or benefit of a particular class of persons” for the purpose of a cause of action of breach of statutory duty coming into existence. Nor could it be said that, on its proper construction, the Act intends to provide a ground of civil liability whenever breach of such obligations might cause injury or damage. It is not tenable for Mr Visic to contend that these very general statutory responsibilities imposed by the Act are capable of giving rise to a cause of action for damages for breach of statutory duty.
Mr Visic concedes that his case is confined to a breach of statutory duty occurring on 10 and 11 January 2005 and does not encompass any anterior breaches. However, confining his case as to breach in this manner does not overcome the fundamental problem that he does not have a tenable basis for his case as to the existence of a statutory duty in the first place.
Mr Visic’s plea of the cause of action of breach of statutory duty should be struck out. This encompasses paragraphs 36 to 38 pleading the existence of statutory duty and paragraphs 39 to 41 pleading breach of statutory duty.
It does not necessarily follow that Mr Visic could not have a reasonable basis for a claim of breach of statutory duty confined to a narrow case of statutory duties arising upon and by virtue of deployment by the CFS on 10 January 2005 to fight the fire. Any such narrow case would be co-extensive with Mr Visic’s case for breach of duty of care. If Mr Visic were to pursue such a narrow breach of statutory duty case, it is likely that it would not significantly increase the length of the trial. In those circumstances, it might be arguable that, although weak, it would not be appropriate to grant summary judgment in favour of the CFS on the breach of statutory duty cause of action if the co-extensive breach of duty care cause of action is to proceed in any event.[128] Accordingly, the question whether Mr Visic should be granted permission to amend his statement of claim to plead a narrow case of breach of statutory duty co-extensive with his breach of duty case should be reserved. If he chooses to seek such permission, the right of the CFS to argue that he does not have a tenable case or a reasonable basis for a claim of breach of statutory duty should also be reserved.
[128] Wickstead v Broune (1992) 30 NSWLR 1 at 5 per Kirby P; Estate of Bradman v Allens Arthur Robinson [2010] SASC 71; (2010) 107 SASR 1 at [58] per Sulan and Layton JJ.
Statutory immunity

Section 64 of the Act provides:
A person incurs no civil or criminal liability for an honest act or omission in the exercise or performance, or purported exercise or performance, of a power or function under this Act.
The issues
Upon the hearing of the application for summary judgment, four substantive issues emerged in relation to the CFS’s defence based on section 64:
1.Does section 64 apply on its face to the CFS, ie does “a person” refer to a natural person only or does it encompass a body corporate?
2.If section 64 is confined to natural persons, and if it would render immune from civil liability all relevant natural persons involved in relation to fighting the fire, does section 64 have the consequential effect that the CFS will have no civil liability because its liability is derivative of and dependent upon the liability of its officers and members?
3.Does the section only protect against liability for deliberate and intended conduct or does it extend to any civil liability whatsoever?
4.Were the acts or omissions which were, ex hypothesi, negligent “honest” within the meaning of section 64?
In relation to the first issue, Mr Proude and Mr Visic address various arguments why, as a matter of construction of the Act, section 4 of the Acts Interpretation Act 1919 (SA) is displaced by a contrary intention and the reference to “person” is to a natural person. The CFS takes issue with those contentions and puts its own contentions why, on its proper construction, section 64 encompasses the CFS as a body corporate.
In relation to the second issue, the CFS contends that, in accordance with the decision of the Full Court in De Bruyn v South Australia,[129] section 64 negates any liability at all for natural persons as opposed to their being liable but merely immune from suit and that the consequential liability of the CFS cannot rise higher than the liability of its members and officers. Mr Proude and Mr Visic contend that the wording and context of section 64 is different to the wording of the provision considered in De Bruyn and that in any event the CFS has, on their case, a primary and not just a derivative liability.
[129] (1990) 54 SASR 231.
In relation to the third question, Mr Visic contends that, because section 64 refers to an “honest” act or omission and because it refers to the “purported” exercise of a power or performance of a function under the Act, it is confined to conduct which is conscious and intended, ie deliberate.
Honesty
In relation to the fourth question, the CFS contends that it should be decided in favour of the CFS because Mr Proude and Mr Visic do not plead replies in which they affirmatively plead dishonesty nor have they adduced any evidence that any of the members or officers of the CFS did not act honestly.
In its defence to Mr Proude’s claim, the CFS pleads, by way of special defence, immunity pursuant to section 66. The CFS pleads:
Further, and in any event, if, which is denied, a duty of care would otherwise be owed by CFS officers in particular situations to take positive steps to extinguish fires or take steps which appear necessary for the purpose of fire-fighting, by virtue of s 64, CFS officers incur no civil liability for any honest act or omission in the exercise or performance or purported exercise or performance of a power or function under the CFA.
…
Further, and in any event, if which is denied, the CFS would otherwise owe a duty itself to take positive steps to extinguish fires or takes steps which appear necessary for the purpose of fire-fighting, by virtue of s 64, it incurs no civil liability.[130]
[130] Defence [22.1.3] and [22.1.5].
The CFS had not yet filed a defence to Mr Visic’s cross claim. Its contention relying upon Mr Visic’s failure to plead lack of honesty in reply has no basis.
For the purpose of the present applications, the CFS concedes that at trial it will bear the onus of proof that the acts or omissions of the CFS or its officers, which ex hypothesi were found to be negligent, were honest acts or omissions within the meaning of section 64 of the Act. The CFS also concedes that, because it would bear the onus of proof at trial, it has the onus of pleading the material facts by way of special defence under and within the meaning of rule 100(1) and (3) of the Rules.
In its defence to Mr Proude’s claim, the CFS does not plead any material facts from which it could be concluded that its members and officers acted on 10 and 11 January 2005 “honestly” within the meaning of section 64 of the Act. It does not plead that they acted honestly, but only pleads the effect of the section that the honest conduct gives rise to immunity in an abstract fashion. It does not refer to any members or officers or their acts or omissions or plead that those acts or omissions were honest.
The CFS has chosen not to adduce any evidence on its application for summary judgment. It was open to it to file and serve affidavits by its officers and members addressing their actions and their state of mind on 10 and 11 January 2005 with a view to proving that their acts and omissions were honest.
The CFS has failed to demonstrate an entitlement to summary judgment. In any event, the question whether the acts or omission of the CFS’s officers and members were honest can only be properly assessed at trial in the context of evidence adduced by all parties concerning the conduct of the CFS on 10 and 11 January 2005. It is artificial to consider in the abstract whether acts or omissions were honest without having a full appreciation of the nature and extent of those acts or omissions.
Accordingly, it is not necessary to further consider or decide the first three questions identified at [121] above.
Conclusion
The application by the CFS for summary judgment against Mr Proude and Mr Visic was dismissed.
Mr Visic’s plea of breach of statutory duty was struck out, with liberty to apply for permission to plead a narrow case of breach of statutory duty co-extensive with his breach of duty of care case.
I will hear the parties as to consequential orders.