NSW ‘out of the frying pan’ over fire

The largest single civil case before the ACT Supreme Court has come to an end. In Electro Optic Systems Pty Ltd v The State of New South Wales; West & West v The State of New South Wales [2012] ACTSC 184, his Honour Chief Justice Higgins determined that NSW was not liable for the loss and damage suffered as a result of – what ultimately became known as – the 2003 Canberra bushfires.

On 8 January 2003, lightning ignited a fire at McIntyres Hut in NSW. This fire, along with other fires, ultimately spread into the ACT and caused catastrophic damage on 18 January 2003. The plaintiffs focused attention on the ‘strategic planning’ by NSW fire fighting personnel early on in the fire fighting effort. Ultimately, the court accepted that NSW ’embraced an inadequate and defective strategy’ and was negligent. However, the court also accepted that NSW was immune from liability for such negligence by virtue of section 43 of the Civil Liability Act 2002 (NSW) and section 128 of the Rural Fires Act 1997 (NSW).

His Honour commented that: ‘[t]he result I have reached is that the plaintiffs’ claims must, as a matter of law, be denied. However, but for the express limitations on the liability which otherwise would attach at common law, those plaintiffs who suffered loss and damage would have been entitled to compensation for their losses. Effectively, they are deprived by statute of what would, under the general law, be regarded as just compensation. The legislature has, however, spoken so as to exempt NSW from such liability, and the courts must apply the law as Parliament has decreed it to be’.

The judgment also records His Honour’s view that the law of NSW was applicable to the determination of the liability of NSW, as that was ‘the place where the negligent acts or omissions occurred’, notwithstanding that the harm and injuries were sustained in the ACT.

To read the judgment, click here.

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