Since writing my post yesterday (Canberra bushfire litigation settles against the ACT) the story on the Canberra Times website has been updated.  The Canberra Times is now (10am, 21 September 2012) reporting that:

… some victims say legal fees gouged away all but a few thousand dollars of their final payout…

One plaintiff said he would receive a few thousand dollars after about 80 per cent of his payout went to Stacks. He maintained, in his case, the court case was never about money, although some people involved in the proceedings had houses and contents that were under-insured or had suffered catastrophic injuries that required ongoing medical treatment.

”My motivation was to actually get the government to see there’d been a failure in terms of responsibility and the only way governments wake up to that is, ‘If you don’t do this, it’s going to cost you’,” he said. ”The motivation wasn’t money.”

Another plaintiff said the payout was ”pitiful”. She maintained the government would have been better off settling soon after the fire rather than challenging in the courts and racking up legal fees.

Another said there was no need for the case to be so prolonged, which was ”a reflection on the process the ACT government followed” and the ”bottomless pit of money it had available to defend itself”.

It’s hard to understand why there was any payment at all, if, as it still being reported, the judgement was entered for the Territory and New South Wales.

It’s interesting to hear that ‘ the government would have been better off settling soon after the fire rather than challenging in the courts and racking up legal fees’ because that would apply equally to the plaintiffs; they would also have been better of settling sooner rather than later. What that view (understandable as it is if it comes from one of the litigants) doesn’t do is give credit to the claims by the defendants that they were not in fact negligent and not in law liable for the damages suffered.  Equally reflecting on the response by the ACT government fails to recognise that there really were significant issues of principle here (as seen from both the plaintiffs and the defendants point of view) and governments shouldn’t just settle early and not defend cases because that makes life unpleasant for plaintiffs.

The real tragedy is that we do have to go through this process at all.  These were catastrophic overwhelming events, trying to say they were some one or some agencies fault is always going to be unsatisfactory.  If people go to court, no matter what their motivation, it always comes down to the money because that is all the court can offer; it can’t ‘undo’ the fire and getting the satisfaction of laying blame at someone else’s feet is not going to change things.  Further this sort of action is not really going to make governments ‘wake up’.  As noted the costs is borne by the insurance companies, and people in government get elected because they want to achieve things, not because they want to abrogate responsibility but not get sued.  As for the fire agencies, this fire was 10 years ago, the fire agencies are not the same as they were then and they don’t work hard to achieve their goals simply because they fear being sued. Look for example at the work being done by the Bushfire CRC to see the effort the fire agencies put into learning and improving their practice.  Their motivation is not ‘litigation fear’ but to do a good job at what they do; and we know (see the annual Report on Government Services published by the Australian Productivity Commission) that they do a very good job at responding to most fires.  But sometimes the fires will exceed the community’s capacity to cope.  Litigation wont change that for the better but it may affect morale and the willingness of people to volunteer and so may limit, not advance the ability of the fire agencies to respond in the future.

The impact of these fires was not a lack of responsibility by government but reflected community decisions, communicated through the electoral and political process, on how and where we live and how we resource various agencies and set priorities.  Perhaps what we need is universal catastrophic insurance, to admit that when the decisions we the community have made come together with the weather and the geography, so that the community is then be impacted by an overwhelming event, whether fire, flood, storm or other hazard.  In those cases the community may like to agree to pay for the costs community decisions have caused and avoid the need to ‘blame’ someone; and whatever people want, a court action in negligence needs someone to blame.

Michael Eburn