“This area of the law, the tort or negligence liability of public bodies is actually quite complex and unpredictable.

“Some people would say it is even unprincipled but I think that goes a bit far.”

That is barrister Barbara McDonald’s assessment of the 2003 Canberra bushfires compensation hearing underway in the ACT Supreme Court.

More than 120 bushfire victims are seeking about $75 million in damages from the ACT and New South Wales governments.

Barbara McDonald is a Professor of Law at the University of Sydney and is widely regarded as an expert in Australian negligence law.

The hearing will determine whether the ACT or NSW authorities are liable for damages.

Professor McDonald says there are three key legal issues facing the plaintiffs and the two governments.

“Firstly, is there a duty of care in law to the individuals concerned?” she said.

“Secondly, was that legal duty of care breached?

“Were the fire authorities actually negligent in the circumstances?”

Professor McDonald says both questions are complicated because public bodies often have multiple responsibilities.

“Another aspect is that courts are very reluctant to review policy decisions of public bodies. There is a divide between what are called policy decisions and operational activities,” she said.

“The third issue is whether or not there are some special defences under local legislation which gives public bodies a good faith defence if they behave in a certain way,”

Vulnerability

Professor McDonald says vulnerability has become a key issue in negligence cases, including the current Canberra hearing.

“Were the plaintiffs vulnerable and couldn’t look after themselves? Were they very dependant on the defendant taking care?” she said.

She says these issues are crucial to bushfires plaintiff Wayne West’s case.

Mr West’s affidavit to the hearing described how helicopters used by NSW fire authorities took water from a dam on his property to fight fires elsewhere.

“The landowners own water stocks were appropriated by the fire service for everybody, but that of course made the individuals more vulnerable and less able to look after themselves and more dependant,” said Professor McDonald.

Uphill battle

Professor McDonald says the hearing will have major implications for Australian negligence law.

“If the plaintiffs win it will be an important example of a case where plaintiffs have succeeded against a public body,” she said.

Such wins are not common in liability cases domestically and internationally.

“It’s an uphill battle to bring a negligence case against any sort of public body,” Professor McDonald said.

“If the plaintiffs lose, it will reinforce the difficulty and reinforce the fact that it is very difficult to succeed,” she adds.

Professor McDonald says the case could encourage victims of Victoria’s Black Saturday bushfires to pursue legal action.

“A decision that one fire service was negligent is no precedent as to whether or not another fire service is negligent in different circumstances,” she said.

“But success in one place will greatly encourage others,” she adds.

Issues and recommendations

Professor McDonald says the case raises important philosophical and social issues for law and the public.

“Whether public bodies like a fire service should be treated differently from private citizens?” she says as an example.

“Whether the public interest in letting them get on with the job for the future should take priority over paying damages to individuals?”

Professor McDonald says once the case concludes recommendations will probably be made to other public bodies.

She says the recommendations are likely to include how they could avoid repeat cases.

“Negligence claims can have a regulatory effect on the way public bodies deal with the public in the future and deal with their resources,” she said.

“It is unlikely the court will get into reviewing policy decisions.

Hearing continues

Meanwhile, scores of plaintiffs and more than a dozen expert witnesses will continue to give evidence to the hearing over the next 10 weeks.

ACT Chief Justice Terence Higgins is then expected to reserve his judgment until later this year.