Proude v Visic (No 4)

Case [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…

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AGLC
Proude v Visic (No 4) [2013] SASC 154
Case
[2013] SASC 154
Decision Date

CaseChat Overview and Summary

The case of Proude v Visic (No 4) concerns a dispute over the adequacy of the Country Fire Service's (CFS) response to a bushfire that resulted in significant property damage. The plaintiff, Mr. Proude, sought damages for losses incurred when a bushfire spread from an initial location, causing extensive damage to properties including his own. Mr. Visic, who parked his vehicle near the initial outbreak, cross-claimed for damages, asserting that the CFS was negligent in its firefighting efforts. The CFS argued that it did not owe a duty of care to either party and further claimed immunity under statute. The court was tasked with determining whether there was a reasonable basis for either the claim or the cross-claim, and whether statutory immunity applied.

The court needed to decide whether the CFS owed a duty of care to the plaintiffs and whether the statutory immunity provision applied to the CFS's actions. The primary legal issue was whether the CFS's response to the bushfire was so negligent that it could be held liable for the extensive property damage. Additionally, the court had to interpret the statutory immunity provision to determine if it shielded the CFS from civil liability for its actions or inactions during the fire.

The court found that there was a reasonable basis for both the claim and the cross-claim, meaning that summary judgment was not appropriate. The court determined that the plaintiffs had presented sufficient evidence to suggest that the CFS could be held liable for failing to adequately control the bushfire. Furthermore, the court ruled that the statutory immunity provision did not apply in this context, as it was intended to protect the CFS from liability for operational decisions, not for gross negligence or failure to act. Consequently, the court dismissed the applications for summary judgment but struck out the pleading of the cause of action of breach of statutory duty.

The court's decision effectively allows the case to proceed to trial, where the merits of the claims and cross-claims can be fully examined. The plaintiffs have the opportunity to prove their case against the CFS, and the CFS will have the chance to defend itself against the allegations of negligence. The court's ruling ensures that the statutory immunity provision will not act as a shield for gross negligence or failure to act in the context of this case.

Orders

Orders of the court

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Background

Background to the litigation

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].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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].

Ratio Decidendi

Legal Principle Established

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