“Court strikes out part of legal claim against Country Fire Service over 2005 fatal bushfires on Eyre Peninsula” is the headline of a news report appearing on the ABC website.
The story is reporting on a judgement in the SA Supreme Court where ‘Justice Malcolm Blue struck out a part of the claim which alleged the CFS had a statutory duty of care in the years leading up to January 2005.’
Unfortunately His Honour’s reasons have not yet been published on AustLII (austlii.edu.au) so this discussion is based only on the ABC report.
As most people will be aware, to succeed in an action for negligence the plaintiff has to prove that the defendant owed them a duty of care. That duty can arise from a statute or the common law. In an action for ‘breach of statutory duty’ the plaintiff argues that the duty is imposed by a statute (or Act of Parliament). The plaintiff argues that the statute imposed a duty on the agency, the agency failed to perform its duty and the defendant suffered a loss.
Bringing these actions is not easy as the court has to decide whether the Parliament intended, when passing the Act, that the obligations in the statute should be enforced by giving an individual the right to sue. Most statutory obligations are not actually intended to protect individuals but the broader community.
The alternative source of duty is the common law. Again many people will have heard of Donoghue v Stevenson  AC 562, the 1932 ‘snail in a bottle’ case where Lord Aitken said:
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.
That test has been modified and explained over the last 80 years but the principle still remains, that if you can foresee that your acts or omissions may injure someone else then you may owe a duty to avoid injuring them. I say ‘may’ be because mere foreseeability is not the only test, vital issues that need to be considered are who has control over the danger, what can be done to protect others, is the defendant vulnerable etc. These are all matters that His Honour has considered in this case, at least according to the report on the ABC website.
In this case what His Honour did was ‘strike out’ the claim arising from statutory duty. In essence he held that the various acts, to the extent that they imposed duties on the CFS did not give private citizens the right to sue if the CFS failed to meet those duties. This is consistent with the litigation in Victoria arising from black Saturday (see “Black Saturday litigation“)
What His Honour did not do is strike out the claim based on a duty arising from common law. As His Honour noted, deciding whether there is a common law duty depends very much on the particular facts and he can’t know those facts until the trial has been allowed to run, so he cannot conclude, without hearing the plaintiff’s evidence, whether or not the case has merit, so it must be allowed to proceed.
21 July 2013.
For an update on this story, see “Multi-million dollar Black Tuesday bushfire lawsuit against CFS to continue after negotiations fail” Herald Sun 8 August 2013.