The case of Nelligan v Mickan & Mickan [1998] SASC 6935 (a decision of Millhouse, Olsson & Debelle JJ) arose from 1993 bushfires in South Australia.

The defendant (Nelligan) was driving his farm utility that had, on the back, a water tank and pump that was being operated by his brother, to fight the fire. They had seen another similar vehicle driven by Paech, with Mickan on the back, proceeding onto a property. Nelligan decided to go there too, to try and protect the home and buildings.

This is how the learned Judge described the situation from the appellant’s [that is Nelligan’s] point of view:-

“Suddenly, the wind gusted from the north and, almost instantly, the fire reached the Gap Road and also moved west into an adjoining paddock containing dry barley stubble. As the defendant was driving west along Gap Road, the fire got into the scrub immediately north of Gap Road and into the branches of some fairly tall Eucalypts. The ferocity of the wind and the fire was such that the flames from the tops of the trees were extending over the utility. The defendant’s brother moved to the left hand side of the utility as far as he could and yelled out to his brother to ‘get the hell out of here’, or words to that effect. There were flames and smoke and cinders everywhere and visibility was very poor – only about 5 or 6 metres.”

Nelligan was driving at a speed estimated to be between 40 and 60 kilometres per hour. Unfortunately he did not see that Paech had stopped his vehicle in a clear area on the side of the road. Paech had stopped there as he too was being surrounded by fire and believed that the area where he stopped would act as ‘something of a fire break’ and they could wait there for the fire to pass. The vehicle driven by Nellgan clipped the offside rear of Paech’s vehicle causing it to flip over. Mickan was thrown onto the road and suffered serious injuries.

Mickan sued Nelligan in negligence. He alleged that Nelligan was negligent in the way he drove out of the fire with restricted visibility, even though he was clearly a life threatening situation. At trial the District Court found that Nelligan had been negligent. On appeal Milhouse J would have found there was no negligence. He said:

Mr Stephen Walsh QC with Mr John Ward for the appellant argued that their client could not be blamed at all for what he did. The sudden change in the direction of the wind, meant that the appellant and certainly his brother were in a life threatening situation: they could have been “burnt to a crisp” (an expression Mr Walsh used several times). The appellant’s brother was yelling, “Get to hell out of here”, he could not be blamed for keeping on driving at the speed he did even with hardly any visibility ahead.

This argument appeals to me. Anyone who has ever been in a situation anything like this, fighting a bush-fire, knows how terrifying it is, not only terrifying but confused and confusing. The appellant believed his brother, if not himself as well, to be in mortal danger. He had to balance the urgency of their situation against the risk of driving almost blind west down the road. I do not blame him for driving on and at his speed.

The two other appeal judges rejected Nelligan’s appeal, upholding the finding that he had been negligent in the way that he drove his vehicle. An immediate reaction may be to consider how appalling it is that Nelligan, a farmer using his own equipment to try and fight a fire on another’s property should be sued for making a decision in the heat of the moment (no pun intended) to save his and others lives. It is the sort of case that is cited to discourage people being volunteers. Why would anyone put themselves out to go and help their neighbour if that is the consequence?

But if we remember that the action wasn’t really against or by Nelligan. He was never going to pay damages, it was the compulsory third party insurer. We may be offended that Nelligan gets sued in these circumstances, but if he doesn’t, what happens to Mickan? He gets no compensation at all (if he was a volunteer firefighters ie actually a member of the fire brigade they would get some equivalent to workers compensation but these were classic ‘good Samaritans’). By finding Nelligan negligent, the court would see Mickan compensated for his losses or injuries but at what cost to Nelligan? Probably not much.

Millhouse J’s judgment is very much on principle that insurance has nothing to do with it and the question is was Mickan negligent. He found that, in the circumstances, he wasn’t. That may well be good for Nelligan’s feelings but not for the injured pump operator.

The other appeal judges found that the trial judge’s verdict against Nelligan should stand but upheld the appeal finding contributory negligence, ensuring that the injured pump operator was compensated without discount.

The case shows how negligence law puts us between a rock and a hard place. If Nelligan is labelled ‘negligent’ we can (if you like) get upset that a good Samaritan can be sued for making a decision that was understandable and we would all make (he was going to die if he didn’t get out of there) but innocent injured people get nothing. If he is ‘negligent’ then it is not him, but an insurer that has received a pool of money contributed to by every road users that pays their compulsory insurance premium, that pays out. Even the appeal would have been conducted by the insurance company so when you read cases with counsel earnestly and appropriately putting arguments on behalf of the defendant/appellant, as they did in this case, who are they really advocating for?

Michael Eburn
6 July 2009