Page 4790 - Week 16 - Thursday, 29 November 1990
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Mr Collaery: They have to prove negligence.
MR CONNOLLY: As the Attorney says, they have to prove negligence. The insurance company says, "Now, how do we do that?". The solicitor says, "We litigate, and we bring the volunteer firefighters in and we put them in the witness box and we pound them, and we pound them, and we pound them. We bring in Mr Cheney from the CSIRO and we give Mr Cheney all the facts".
Mr Cheney says, as an expert witness, that the fire captain I was referring to earlier ought to have radioed in before he started the back-burn. He says that he ought not to have relied on the weather report that he had got half an hour earlier; that he ought to have rung. He would be asked, "Well, how long would it take to radio in, Mr Cheney?". Mr Cheney would say, "Well, he has a little porta phone. Conditions were clear. He could have got through. It would have taken him 30 seconds if he had telephoned in and asked whether the forecast he was given half an hour ago was still valid. And they would have said, 'No, hold on. There is a new forecast. Do not do anything'.". He would then be asked, "Thirty seconds would have been reasonable for him to have done that?", and he would say, "Yes, of course, it would have". The bushfire captain would be put in a humiliating situation in the witness box when justifying his actions. He would be asked, "Why didn't you do that?".
Negligence could be established in the circumstances that I am postulating, the negligence being that the bushfire captain negligently failed to check that the weather forecast that he was relying on was still valid. Negligence is established. The Crown is liable. The poor old bushfire captain has been dragged through weeks of court proceedings. I suppose one could say that he was humiliated in front of his peers, being shown to have been negligent. No-one is saying that he was not acting in good faith.
Members interjected.
MR CONNOLLY: I know that this is worrying the Government. No-one could say that the bushfire captain had not acted in good faith; but, as the Attorney and Mr Stefaniak well know, acting in good faith is no defence to an action in negligence. We have the situation where, in the circumstances of the fire, it is very possible that negligence could be established.
That is just one instance. We could think of many, many other circumstances where, after the event, lawyers, poring over what happened in the circumstances of fighting a bushfire which got out of control and caused much damage to property, could pinpoint instances of negligence, target those bushfire fighters, and go for them to establish negligence to get the damages. Of course, it would be well
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