Page 4789 - Week 16 - Thursday, 29 November 1990
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dangerous activity which we are asking our trained volunteers to use with perfect 20-20 hindsight, which is what courts and lawyers are always blessed with when they come to look at a case before them.
It is very easy to find that the bushfire captain made an error of judgment which would, in law, amount to negligence. We can easily imagine a situation: there is a grass fire. The bushfire captain has been on the radio. He asks, "What is the weather forecast?". The weather forecast continues to be for southerly winds. He makes the decision, based on his training, that a back-burn is appropriate. Things are happening quickly. He got that weather forecast half an hour ago. He thinks, "Shall I check for another weather forecast? No, we are in a bit of a hurry. We will light the back-burn". Unfortunately, there is a change of weather forecast.
Had he, as a prudent and reasonable man, which is the test in tort, radioed back in and checked, "Is there a new forecast?", he would have been told, "Yes, there is an urgent wind shift about to happen, northerly winds". He has lit the back-burn in good faith, acting on information he had some time ago but, unfortunately, in the heat of the moment, without making another call. The winds change. The fire turns into a major conflagration and spreads into an urban area - potentially causing tens of millions of dollars of damage. The court says that the back-burn, which was done in good faith and was meant to preserve life and property, was a negligent act. Let us hope that it does not ever happen again. In Australia we have seen hundreds of millions of dollars of damage that can be caused by a bushfire which can start in those circumstances.
We are saying, "Why ought the ACT assume that sort of responsibility?". The Attorney makes the point that the individual is protected. I am not so sure that the individual would feel protected. In the event of successful court proceedings the liability would, of course, under the Government proposal, be borne by the Crown, the ACT, not the individual firefighter. But the individual firefighter would be dragged through weeks, or months, of court proceedings.
I will get to who will be bringing the case because, inevitably, it will be the insurance companies. The insurance companies will have suffered massive losses. We have a situation where a lot of property has been lost. To go back to my previous example, the fire has got into an urban area, we have tens of millions of dollars of damage, and the insurance companies face a very large pay-out. They go to their solicitor and say, "Have a look at this new novel reformist law that the Attorney-General of the ACT is so proud of. Tell us what that means". The solicitor will say, "Well, this is your lucky day, Mr Insurance Company. This means that you are not going to have to pay out hundreds of millions of dollars on your policies because we can sue the ACT".
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