16 April 2010

Big rats flee the sinking bushfire litigation

| johnboy
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The ABC brings word that QBE insurance has pulled out of the quixotic compensation suit for the 2003 bushfires currently enriching the legal profession in the Supreme Court.

QBE is the third insurer to pull out of the proceedings.

NRMA was the first to withdraw in December last year while Suncorp Metway ceased proceedings at the start of the hearing last month.

The departures have significantly reduced the number of plaintiffs involved in the hearing.

More than 600 plaintiffs were initially involved in the hearing and there are now just over 100 seeking compensation.

Those that remain are vowing to make their lawyers richer for as long as it takes.

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1. Lightning = natural event
2. Fire from lightning = natural event
3. Leaving fire to burn and escalate into a wildfire = human action (or lack thereof).

Which is exactly why this case is so interesting legally – it is about the liability of the state to take action (or not).

Don’t put words in my mouth.

Could it have been done? Apparently so.

Given that, should it have been done? Certainly.

Was there an political obligation to do so? Absolutely.

Was there a legal obligation to do so? No, not at all. I do not accept that being the sovereign power over the state confers a legal obligation to mitigate natural disasters that occur within the state.

troll-sniffer is NOT “absolutely right”. The fire at Macintyre’s Hut could have been put out on the 8 and 9 January 2003, even using dry firefighting techniques. I have been out there a number of times and have photos of the actual tree struck by lightening. It is not steep, slippery or inaccesible.

The CSIRO were out there filming on the first few days and I have seen the videos they took. The height of the flames were no more than knee height.

The firefighters should have been allowed to fight that fire immediately after it commenced. Despite what troll-sniffer and caf feel, this was something that could have been done and should have been done. The authorities were negligent and should be sued for being so.

QBE didn’t flee very far according to the article you quoted: The insurer yesterday withdrew its claim against the ACT but has not dropped action against NSW. The ACT and QBE have each agreed to bear their own costs, which means an out-of-court agreement of some kind (by definition).

The claim isn’t against God or natural disasters (depending on your view of ‘acts of God’) – in this case the lightning strike – but against the authorities who didn’t put the fire out at Macintrye’s Hut in the first 24-48 hours.

The ACT couldn’t control that bit, but the arguments now seem to be around whether NSW could have – and therefore should have – tried harder.

The main plaintiffs now are the ones with nothing to lose

Clown Killer2:25 pm 16 Apr 10

This is getting interesting.

When the hearing opened, counsel for the ACT and NSW Govt’s arguesd that they had no duty of care to stop a bushfire – they conceded that there was an expectation that they would make every effort, and that they did try and they did commit resources to it but in the end they couldn’t be responsible for the whole lot going pear-shaped.

My thoughts at the time were – well derrr, but I wonder if you’ll be allowed to get away with it in a world were everything (no matter what or how absurd) seems to be someones responsibility.

Perhaps we’re about to witness a bit of a reality check. Wont be holding my breath though.

troll-sniffer is absolutely right. While Governments may (and do) have a political imperative to competently protect us from natural disasters, they certainly shouldn’t have a legal one. As a society we choose to have our taxes spent on fighting bushfires, and that’s right and appropriate – but we’re not forced into it by some legal duty of care nonsense. To think otherwise is to seriously undermine our democratic system.

troll-sniffer11:37 am 16 Apr 10

It seems strange to me that the legal profession could think that they have a leg to stand on when bringing litigation directly related to natural events. My (possibly distorted?) common sense tells me that in Australia, land of hot dry summers, a bushfire is a natural event. Homeowners should know this and put in place necessary safeguards to prevent this natural occurrence destroying their property. The same commonsense tells me that although authorities assume a role of damage mitigation, to sue them under the premise that they may not have performed to perfection, is patently absurd.

Taken to its obvious conclusion, under these rules of apportioning blame (and by association an ability to sue), an authority could be liable for damage caused by flood, heavy rain, snow, hail, high winds and even sunburn for those who sit outside on a sunny day when clouds were forecast.

Australians who live in areas where natural events such as floods occur have always been responsible for their own protection, so why do bushfires need to be treated differently?

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