The landholders - via Proude - claimed that CFS negligently failed in attempts to contain and extinguish bushfires that ultimately burnt some 78,000 hectares on the Lower Eyre Peninsula.
The judgment notes that
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. ...
Mr Proude and Mr Visic accept that the CFS did not do anything which positively caused or exacerbated the fire. Their case is that, upon deploying to extinguish or contain the fire, the CFS owed a duty to the landholders to exercise reasonable care in doing so.In Proude v Visic (No 3) [2012] SASC 234 Proude had pleaded that
that the bushfire and in turn the losses of all group members were caused by the negligence of Mr Visic on and as at 10 January 2005 ...
Mr Visic owed a duty of care to the group members to take reasonable care in the use and maintenance of his land cruiser so as to avoid foreseeable risks of injury;
Mr Visic was negligent in the use and maintenance of his land cruiser in that:
(a) he knew there were holes and imperfect joints in the exhaust system;
(b) he knew that the muffler did not have a spark arrestor;
(c) he knew that, because of those matters, the exhaust system might emit hot particles;
(d) he drove and/or parked the land cruiser in close proximity to dry vegetation on a hot day;
(e) he knew that the escape of hot particles from the exhaust system might ignite that dry vegetation and lead to a bushfire;
(f) alternatively he ought to have known each of the above matters;
(g) he failed to ensure that the exhaust system was not defective as alleged above or that there would be no risk of fire from his driving and/or parking his land cruiser as alleged above;
Mr Visic’s negligence caused the ignition of the dry vegetation and the fire which burnt an area of land on 10 January 2005 up to and including the paperbark swamp; the fire escaped from the paperbark swamp at area A and area C; the fires converged and burnt an area of land comprising approximately 78,000 hectares; the bushfire burnt the land and personal property situated thereon of the group members; the group members thereby suffered direct and consequential loss and damage. ...
the losses suffered by those whose properties were burnt on 11 January 2005 were caused concurrently by the negligence of the CFS in its response to the bushfire which resulted in its breaking out of the paperbark swamp on the morning of 11 January 2005 ...
the CFS owed to the group members a duty to take reasonable care in the course of exercising its statutory powers and functions to control and extinguish the bushfire so as to avoid foreseeable risks of property loss or damage;
the CFS was negligent in that:
(a) there were defects in its Incident Action Plan, in part as a result of inadequate gathering of information;
(b) there were defects in the handover from the first to the second Incident Controller and in failing to modify the Incident Action Plan in light of subsequent developments and information;
(c) there were defects in the passing of information from personnel at the firefront up through various levels of the CFS to State Headquarters and in the direction and control from State Headquarters down through various levels of the CFS to personnel at the firefront;
(d) the principal fire fighting measure adopted of blacking out the fireground to 30 metres was inadequate in nature and extent and additional blacking out, back burning and creation of bare earth breaks should have been undertaken and additional fire fighting resources deployed;
(e) no blacking out was undertaken and no fire fighting resources were deployed in area C until 3:30 am on 11 January 2005;
(f) no fire fighting resources were deployed at all in area A;
the negligence of the CFS permitted the fire to escape from the paperbark swamp at area A and area C;
the fires converged and burnt an area of land comprising approximately 78,000 hectares;
the bushfire burnt the land and personal property situated thereon of the group members;
the group members thereby suffered direct and consequential loss and damage.Proude claimed that he suffered losses of $2.267m and that the 257 landholders within the group suffered total losses of approximately $60 million. (Approximately 40 percent of this total appears to have been met by five insurers.)
In the current judgment the SASC found that the question of whether CFS's duty of care arose invited a multi-faceted inquiry into salient features of the relationship between parties. That inquiry could be properly assessed at trial.
