Canberra Bushfires Litigation: NSW v West [2008] ACT Court of Appeal 14 (5 September 2008)

Abstract

The decision of the Australian Capital Territory Court of Appeal in NSW v West represents the first of what is likely to be many judgments in the litigation arising from the 2003 Canberra bushfires. The plaintiff has commenced action in the Australian Capital Territory against, amongst others, the New South Wales Rural Fire Service. The essence of his allegation is that the Rural Fire Service was negligent in failing to take active fire fighting measures to try and extinguish the McIntyre's Hut fire and that as a result the fire spread across the Goodradigbee River and burnt out his property. The Rural Fire Service sought to have the plaintiff's claim dismissed on the basis that it failed to disclose any cause of action; that is as a matter of law, even if he established the facts alleged in his pleadings, the plaintiff could not win as the law would not hold that the Service owed him a legal duty of care. Connolly J declined to strike out the plaintiff's claim so the Fire Service appealed to the Court of Appeal. By a 2 to 1 majority (Chief Justice Higgins and Justice Penfold; Justice Graham dissenting) the Court dismissed the appeal and allowed the legal action to continue.