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[2011] VSC 168
Supreme Court of Victoria
2011-05-10
J FORREST J
Original judgment source is linked above.
Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services Corporation Ltd (Ruling No 2)
PRACTICE AND PROCEDURE - Application for summary judgment - Strike out of Statement of Claim and cross-claims against State of Victoria - Applicable principles for strike out - No real prospects of success - Rule 23.01(1)(a) Supreme Court (General Civil Procedure) Rules 2005 - Section 63 - Whether statutory duty created by the and DISPLAN - Whether arguable common law duty owed by members of Victoria Police to persons threatened by Black Saturday fires.
1 The background to the Plaintiff, Mrs Matthews', group proceeding is set out in Ruling No 1.[1]
3 The claims against the State are, in reality, claims against Victoria Police officers and relate solely to Mrs Matthews' claim for personal injuries (physical and psychological) and those of group members who suffered personal injury or have claims arising out of the deaths of those who perished in the Kilmore East bushfire.
4 Mrs Matthews alleges that Victoria Police officers breached both the statutory and common law duties owed to her and the group members. She alleges that police officers failed to warn residents who were likely to be exposed to the approaching fire or to supervise/coordinate the activities of members of other emergency response organisations (such as the CFA and SES) in relation to the provision of warnings. SPI and USC make identical allegations in their claims against the State.
5 Determination of this application requires consideration of the State's liability for the actions of police officers, the statutory powers and obligations of the officers under the Emergency Management Act 1986 (Vic)[5] and the statutory and common law duties (if any) owed by officers to members of the Victorian community affected or potentially affected, by the Black Saturday fire emanating from Kilmore East.
6 The State seeks summary judgment in relation to the claim against it, asserting that it is hopeless, bound to fail and has no real prospect of success.
7 For reasons which I will set out, I have concluded that the claim based on breach of statutory duty is hopeless and should be dismissed. On the other hand, I have concluded that the claim in negligence (whilst perhaps not felicitously pleaded) is tenable and should be permitted to go to trial.
8 In explaining my reasoning, it will be necessary to say something both about the procedural background to this claim and, more importantly, the legislative framework in which police officers operate in an emergency such as Black Saturday.
9 Much of the relevant background is to be found in my reasons in Ruling No 1. The following matters are germane to this application.
10 In July 2010, Mrs Matthews replaced Mr Keane as the representative plaintiff for the group in the claim proceeding; the claim was also amended to have SPI as the defendant in place of two other "SP" companies.
11 In late September 2010, SPI joined USC and the State defendants to the claim[6] seeking contribution. Mrs Matthews was also joined as a defendant.
12 Mrs Matthews then, in early January this year, amended her statement of claim to add the State defendants and USC as parties to the group proceeding.
13 In March this year USC also delivered a claim seeking contribution from the State Defendants and SPI.
14 The claims made in the SPI counterclaim against the State defendants are the template for the claims brought by Mrs Matthews and USC against those entities.
15 The State, in applying to have each of the claims against it dismissed, relies upon Rule 23.01(1)(a) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), the inherent jurisdiction of the Court and, alternatively, s 63 of the Civil Procedure Act 2010 (Vic).
16 Rule 23.01(1)(a) involves the application of well known principles recently described by the High Court in Spencer v The Commonwealth:[7]
In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail. That this was the basis of earlier decisions may be illustrated by reference to two decisions of this Court often cited in connection with questions of summary judgment: Dey v Victorian Railways Commissioners and General Steel Industries Inc v Commissioner for Railways (NSW).[8] (citations omitted)
17 The alternative basis, under s 63 of the CPA poses a different test. It provides:
(1) Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2) A court may give summary judgment in any civil proceeding under subsection (1)-
(a) on the application of a plaintiff in a civil proceeding;
(b) on the application of a defendant in a civil proceeding;
(c) on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.
18 I do not accept SPI's submission that, in effect, the "no real prospect of success" test is no different to that under r 23.01(1)(a). I think it clear from a reading of the Civil Justice Review Report[9] and, importantly, the actual wording of the statute, that the legislature intended that a different and less stringent test be applied under the Civil Procedure Act in determining whether a proceeding be dismissed on a summary basis.
19 In Spencer, although dealing with an equivalent (but not identical) provision of the Federal Court Act 1976 (Cth)[10] which referred to "reasonable", rather than "real", prospects of success, the High Court did not doubt that a different standard was to be applied:
Because s 31A(3) provides that certainty of failure ("hopeless" or "bound to fail") need not be demonstrated in order to show that a plaintiff has no reasonable prospect of prosecuting an action, it is evident that s 31A is to be understood as requiring a different inquiry from that which had to be made under earlier procedural regimes. It follows, of course, that it is dangerous to seek to elucidate the meaning of the statutory expression "no reasonable prospect of successfully prosecuting the proceeding" by reference to what is said in those earlier cases.[11]
The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, ... that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all. [14] (emphasis added)
In Spencer, French CJ and Gummow J (in their joint judgment) referred to this passage but then went on to add a note of caution as to the exercise of such a power:
The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:
The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.
More recently, in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following:
Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."
There would seem to be little distinction between those approaches and the requirement of a "real" as distinct from "fanciful" prospect of success contemplated by s 31A. That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions.[15] (citations omitted)
21 In Swain v Hillman,[16] Lord Woolf, in considering the English test of "no real prospect of succeeding on the claim or issue", said that the words to do not need any amplification as they speak for themselves and accepted that the use of the word "real" directs the Court to "the need to see where whether there is a realistic as opposed to a fanciful prospect of success".[17]
22 From the above, I think that the following principles can be identified as relevant to this application:[18]
23 First, the nature of the proceeding is important. The group represented by Mrs Matthews is large and diverse. It does, however, have one unifying characteristic - each member has, in one way or another, been affected by the Kilmore East fire. Over 100 persons lost their lives, and many suffered significant physical and psychiatric injuries which are the subject of the claim against each of the Defendants. In this respect, the words of the High Court as to the exercise of caution are particularly salutary, where the dismissal of a proceeding (or part of it) may affect hundreds, if not thousands who sustained physical or psychiatric injuries or death.
24 Second, because this is a group proceeding under Part 4A of the Supreme Court Act, it necessarily involves a determination not only of the plaintiff's individual claim, but also the resolution of a number of questions or issues which will bind members of the group.[19] There is therefore a greater degree of generality in this type of case than in a claim brought by an individual plaintiff.
25 Third, and this is particular to this application, the carriage of the claim against the State has effectively been maintained by SPI. Mrs Matthews and USC have adopted the SPI claim against the State. The primary contradictor to the State's application is SPI. In that context, the analysis of the pleadings focused on the SPI claim, given that it was mirrored in the claims by Mrs Matthews and USC against the State. I have taken that approach in my analysis of this application.
26 Fourth, in the course of the hearing, there was considerable comment, indeed criticism made by counsel for the State of the submissions made on behalf of SPI and, in particular, the failure by SPI to differentiate between the Victoria Police, as an inchoate entity, the Chief Commissioner of Police, various specifically designated roles held by police officers in an emergency and members of the force generally. The real issue, however, is not the way in which the submissions have been drafted, but whether the pleaded case can support claims for breach of statutory or common law duty against members of the Victoria Police, so that this part of the proceeding can go to trial.
27 Finally, and what I have to say next may be trite, it is not the role of this Court at this stage to conduct an inquiry into the conduct of Victoria Police officers on Black Saturday in relation to the Kilmore East fire. Rather, it is to determine whether there is a tenable case against police officers, applying the principles I have set out. This is not to be undertaken by a subclinical analysis of the pleadings, but by looking at each claim in its entirety and seeing if it satisfies those tests.
The liability of the State for the conduct of police officers
28 It is necessary at this stage to identify the structure and source of the powers of Victoria Police officers and the liability of the State for the exercise of those powers.
30 Section 11 of the PRA gives every constable "such powers and privileges and be liable to all such duties as any constable duly appointed now has or hereafter may have either by the common law or by virtue of any Act of Parliament".
31 The State may be rendered liable for the actions of police officers by the application of the Crown Proceedings Act 1958[22] or the PRA.
32 Under the common law, the Crown was immune as of right from a liability in tort.[23] The immunity could only be undone by statute. In this State, it was not until 1955 that it was removed and then only in a restricted form that is still operative today. Section 23(1)(b) of the CPA provides:
the Crown shall be liable for the torts of any servant or agent of the Crown or independent contractor employed by the Crown as nearly as possible in the same manner as a subject is liable for the torts of his servant or agent or of an independent contractor employed by him.
33 However, in the case of police officers, the provision has limited application as an officer is not a servant or agent of the Crown when carrying out policing duties. As Griffith CJ said in Enever v King:[24]
...the powers of a constable, qua peace officer, whether conferred by common or statute law, are exercised by him by virtue of his office, and cannot be exercised on the responsibility of any person but himself. If he arrests on suspicion of felony, the suspicion must be his suspicion, and must be reasonable to him. If he arrests in a case in which the arrest is made on view, the view must be his view, not that of someone else. ... A constable, therefore, when acting as a peace officer, is not exercising a delegated authority, but an original authority, and the general law of agency has no application.[25]
34 Recently, Kyrou J in Slaveski v State of Victoria & ors[26] considered the Enever principle and its practical application to torts alleged to have been committed by police officers:
There is, however, an established rule at common law that operates, in some circumstances, to negate any vicarious liability on the part of the Crown. That rule is that the Crown is not vicariously liable for the torts committed by a public officer in the execution of an independent duty that is cast upon him or her by the law. The rationale for this rule is that the officer is not subject to the employer's control at the time that he or she is executing some legal duty that arises independently of the employment relationship.
In Victoria, each person appointed as a member of the police force holds an office under the PR Act, and he or she must take and subscribe an oath in the form set out in sch 2 to that Act. The oath requires the member, among other things, to "see and cause Her Majesty's peace to be kept and preserved" and to "prevent to the best of [his or her] power all offences against the same". Upon taking and subscribing the oath, each member is vested with various powers, both at common law and under statute, which he or she exercises as a matter of original authority, and not as a servant of the Crown. The rule discussed above means that, at common law, the member is solely responsible for any torts that are committed in the exercise of those powers.[27] (citations omitted)
However, as his Honour also noted, there may be cases where a police officer is liable under s 23(1)(b) of the CPA - it depends on the particular task being performed at the relevant time:
The State may be vicariously liable for any tort committed by a police officer in the course of his or her employment that is unrelated to the exercise of a common law or statutory power. No such issue arises in this proceeding, however, because, with two immaterial exceptions, all of the torts alleged against the police defendants relate to the exercise of powers that are vested in them by the law.[28]
35 The alternative method by which the State may be liable for the acts or omissions of a member of Victoria Police is under s 123 of the PRA which provides:
(1) A member of the force ... is not personally liable for anything necessarily or reasonably done or omitted to be done in good faith in the course of his or her duty as a member of the force ...
(2) Any liability resulting from an act or omission that, but for subsection (1), would attach to a member of the force ... attaches instead to the State.
36 The scope of this provision was considered by the Court of Appeal in State of Victoria v Horvath,[29] in which the Court said of the relationship between members of Victoria Police and the State, and the application of Enever:
Hitherto, given the principle determined in Enever v. The King and like cases, police members have generally been regarded under the law as exercising an independent discretion when acting in the course of their duties and thus, as being personally liable in respect of tortious acts or omissions committed in that context. However, the very nature of those duties and the circumstances under which they may need to perform them render police members peculiarly vulnerable to civil suit. They are regularly called upon to make extremely difficult decisions as to the proper course to be adopted in the course of performing their important role in our community and, sometimes, in circumstances where the opportunity for mature or deliberate reflection may not be possible. Unless freed of unnecessary apprehension when going about their tasks in an appropriate fashion, their ability and preparedness to do so could be significantly reduced. Recognizing that there is a need for some protection against civil action but never accepting any obligation to do so, as a matter of practice the State has regularly indemnified police members in such circumstances. The new section was intended to regularize the situation from the perspective of police members whilst ensuring that persons who may be injured or incur loss and damage as a consequence of the tortious conduct of members in the course of their duties were able to secure compensation.[30]
...the terms of s 123 of the Victorian Act do not make the State vicariously liable for the torts of police officers committed in the exercise of their independent discretion. Such officers are still recognised in this State as exercising powers and duties on their own responsibility. [31]
However, the section also attaches liability to the State for the actions of its officers:
Although the provisions of s 123 are undoubtedly designed to be protective of police officers and, thus, to be given no narrow construction, they are nevertheless intended to operate so as to attach liability to the State only where that liability has been incurred for things necessarily or reasonably done in good faith in the course of duty. In other words, it seems to us that subs (1) of s 123 is intended to 'carve out' an area of conduct of police officers in respect of which they will be immune from personal liability and - despite imperfections of drafting - subs (2) is intending to attach to the State the liability against which the police officer is immunised by subs (1).[32]
37 In Slaveski, Kyrou J distilled from the judgment in Horvath, the following matters as being relevant to the application of s 123:
(a) The provision must not be construed in a narrow or restrictive manner, given that its purpose is to protect mistaken, but otherwise 'responsible', police members from personal liability.
(b) The interdependence of the notions underlying the expressions 'necessarily or reasonably', 'in good faith' and 'in the course of ... duty' means that the expression 'anything necessarily or reasonably done or omitted to be done in good faith in the exercise of his or her duty' must be read as a whole.
(c) The words 'necessarily' and 'reasonably' must not be so narrowly construed that the protection conferred on police members by the provision becomes illusory.
(d) In particular, the use of the word 'reasonably' does not import a completely objective test. Rather, in assessing the necessity for, or the reasonableness of, the course chosen by a police member, the test is 'whether, having regard to all of the circumstances existing at the time and, viewed from the perspective of the member, reasonable grounds existed for the adoption of the chosen course.' In general, this test will be satisfied if the police member acted in good faith in the course of his or her duties.
(e) In deciding whether conduct was performed in the course of a member's duty, it is incorrect to characterise the member's overall conduct and then to determine whether conduct of that kind is reasonably or necessarily related to his or her duty. The specific conduct in question, including the manner in which it was performed, must be assessed by reference to the question of whether that conduct was necessarily or reasonably done or omitted to be done in the course of the member's duty.[33] (citations omitted)
38 It follows that the only way in which liability can attach to the State is through the CPA or the PRA; it will be necessary for Mrs Matthews or the other defendants to identify an act or omission on the part of a police officer which can support a claim for breach of statutory or common law duty.
The Emergency Management Act and DISPLAN
39 Central to the claim for breach of statutory duty is an analysis of the relevant provisions of the EMA and its interaction with DISPLAN. Given that the common law breach is said to include a failure to exercise a statutory power, then those provisions are also relevant to whether there is an arguable breach of common law duty.
40 Section 1 of the EMA describes the purpose of the Act: to provide for the organisation of emergency management in Victoria.
41 An emergency which may trigger the application of the EMA (and DISPLAN), is defined by s 4 of the EMA as "an emergency due to the actual imminent occurrence of an event which in any way endangers or threatens to endanger the safety or health of any person in Victoria or which destroys or damages, or threatens to destroy or damage any property in Victoria or endangers or threatens to endanger the environment or an element of the environment" and includes "a fire", as well as plagues, epidemics, hijacks, sieges, riots, warlike acts or disruptions to essential services.
42 The objectives of the Act are set out in s 4A as follows:
The objectives of this Act are to ensure that the following components of emergency management are organised within a structure which facilitates planning, preparedness, operational co-ordination and community participation -
(a) prevention - the elimination or reduction of the incidence or severity of emergencies and the mitigation of their effects;
(b) response - the combating of emergencies and the provision of rescue and immediate relief services;
(c) recovery - the assisting of persons and communities affected by emergencies to achieve a proper and effective level of functioning.
43 By s 5(2), the Chief Commissioner of Police is "the designated Deputy Co-ordinator in Chief of emergency management", and as such his or her role is to ensure that adequate emergency management measures are taken by government agencies and to coordinate the activities of government agencies carrying out their statutory functions, powers, duties and responsibilities in taking such measures.[34]
44 Section 10(1) provides that the Co-ordinator in Chief (the Minister)[35] must arrange for the preparation or review from time to time of DISPLAN "for the coordinated response to emergencies by all agencies having roles or responsibilities in relation to the response to emergencies". The Co-ordinator in Chief is obliged to consult with the Victorian Emergency Management Council (set up under the EMA) before arranging for the preparation and review of DISPLAN.
45 By s 11(1), the Chief Commissioner, in addition to his or her role as Deputy Co-ordinator in Chief of Emergency Management is also the State Co-ordinator of DISPLAN "responsible for the coordination of the activities of agencies having roles and responsibilities in relation to the response of emergencies".
46 Section 11(2) requires the State Co-ordinator to appoint "a member of the police force" to be the Deputy State Co-ordinator of DISPLAN.
47 By s 13, the State Co-ordinator is also obliged to appoint "a member of the police force" as a co-ordinator of DISPLAN in each region and municipal district.
48 Section 15 sets out the required contents of DISPLAN:
(a) identifying, in relation to each form of emergency specified, the agency primarily responsible for responding to the emergency (referred to in this section as the responsible agency); and
(b) relating to the co-ordination of the activities of other agencies in support of a responsible agency in the event of an emergency; and
(c) specifying the roles of agencies in the event of an emergency; and
(d) specifying the roles and responsibilities of co-ordinators appointed under section 13; and
(e) defining regions for the purpose of section 13.
49 Section 17 then requires DISPLAN after preparation or review to be disseminated to every agency to which DISPLAN applies and to be published in such manner as the Co-ordinator in Chief determines.
50 DISPLAN itself is found in Part 3 of the Emergency Management Manual Victoria.[36]
51 Under clause 3.1, the purpose and scope of DISPLAN is set out as follows:
The State Emergency Response Plan identifies the organisational arrangements for managing the response to emergencies within, or with the potential to affect, the State of Victoria, and applies to all agencies having roles or responsibilities in response to those emergencies.
Part 7 of this manual describes the response roles and responsibilities of government and non-government agencies and should be read in conjunction with this part.
This plan, together with the State Emergency Recovery Plan (see Part 4), provides the framework within which specific agency or multi-agency response and recovery plans are developed and operate.
52 The co-ordination role in the Victoria Police is set out under clause 3.2 described as "Response Management Arrangements":
Co-ordination Role of the Victoria Police
In addition to its role as control or support agency in certain emergencies, Victoria Police has the responsibility under the Emergency Management Act 1986 for emergency response co-ordination. Emergency response co-ordinators are responsible for ensuring the coordination of the activities of agencies having roles or responsibilities in response to emergencies, with the exception of emergencies involving defence force or aircraft.
Principal Role of Emergency Response Co-ordinators
The principal role of emergency response co-ordinators is to:
Field Emergency Response Co-ordinator
The field emergency response co-ordinator is usually the senior member of the Victoria Police at the scene of an emergency. The response roles, responsibilities and duties of the field emergency response co-ordinator are to:
Municipal Emergency Response Co-ordinator
The State Emergency Response Co-ordinator appoints, for each municipal district, a member of the Victoria Police as municipal emergency response co-ordinator. They are listed in Appendix 8, Part 8. The response roles, responsibilities and duties of a municipal emergency response co-ordinator (MERC) are to:
Divisional Emergency Response Co-ordinator
The State Emergency Response Co-ordinator appoints, for each emergency response division, a commissioned officer of police as divisional emergency response co-ordinator (listed in Appendix 8, Part 8). The response roles, responsibilities and duties of the divisional emergency response co-ordinator (DERC) are:
53 Clause 3.4 then provides under the heading "Operational Arrangements":
Warning arrangements
Warnings should be used under specific circumstances where community action is necessary to protect lives, property or the environment. Upon the request of a control agency to issue a warning, it is the responsibility of the emergency response co-ordinator to ensure that it is issued both to agencies and the potentially affected community. The content and format of the warning must be simple, arresting, brief, suited to the needs of the affected community and be worded in accordance with advice from the control agency (refer Media Liaison page 3-12).
Warning methods could include loud hailers, telephones, door knocks, radio or television announcements, or local community networks.
For emergencies of major community significance, the warning should be authorised by an emergency response co-ordinator in consultation with the control agency.
54 The remaining parts of DISPLAN deal with the co-ordination of responses to an emergency, including the carrying out of evacuations, the declaration of emergency areas and the powers of police to deal with decontamination.
Control and Support Agencies for Response
The purpose of this table, required by the Emergency Management Act 1986, is to identify control agencies and key support agencies for response. Response planners should use it as a definitive guide to agencies which must be included in response plans. It does not list all agencies that may be involved in any particular emergency. Nor does it list all emergencies that may be encountered.
In using this table, reference should be made to the State Emergency Response Plan (Part 3 of this Manual) for an explanation of response concepts and operational arrangements. Refer to Part 8 for explanations and abbreviations and technical terms.
Control Agency
A control agency is an agency identified within this table that is assigned to control the response activities to a specified type of emergency. The control agency may change as the emergency response progresses or is clarified.
For certain types of emergency, more than one control agency is shown, as the assigned control agency may vary by location. Divisional and municipal response plans identify the relevant control agencies for their areas.
Support Agency
A support agency is an agency which provides essential services, personnel, or material to support or assist a control agency or affected persons.
56 The relevant part of the table reads as follows:
57 A separate table is then provided under the heading "Support Services and Agencies of Response":
In addition to the list of control agencies and key support agencies, there is a range of generic support services for response.
The list of generic support services indicates the primary support agency or managing agency and other support agencies. The list is neither exhaustive nor exclusive as many response agencies have a support role, depending on the effects of the emergency.
58 The support services are then listed in a table which includes:-
59 Part 7 then goes on to deal with the role of a large number of organisations which play a part in responding to emergencies (e.g. Ambulance Victoria, Salvation Army, Australian Red Cross, Country Fire Authority, Department of Premier and Cabinet, Department of Transport and RSPCA). In relation to the Victoria Police, the following is said:
Victoria Police
Control Agency for Accidents/Incidents involving Aircraft, Rail, Tram and Road Coordination Agency for all Response Activities.
Prevention/Mitigation/Risk Reduction Activities
Development of community emergency awareness through the provision of information and education in the media, and other means.
Response Activities
Control agency for:
The claim of statutory breach based on the EMA and DISPLAN
60 The pleading of the claim for statutory breach by SPI sets out the relevant provisions of the PRA, the EMA and DISPLAN.[37] It asserts that DISPLAN was published in July 2003 and was in force at the time of the fire. It identifies, in particular, the role of Victoria Police officers as municipal or divisional response co-ordinators. In particular it identifies a Divisional Emergency Response Co-ordinator of the Seymour division and Municipal Emergency Response Co-ordinators within that division as being members of Victoria Police.
61 The nature of the duty is set out in the following way,[38]:
In the premises, at all relevant times, under DISPLAN Victoria Police had the responsibility:
(a) to give consideration to whether the public should be alerted to existing and/or potential dangers arising from a serious emergency and/or the need for evacuation having regard to advice within Victoria Police regarding the potential of an emergency not under substantial control;
(b) to disseminate information to the media and to the general public from the SERCC in relation to an emergency (including a fire) which conformed with the Communication Principles.
The duty referred to in the preceding paragraphs was a statutory duty owed by the Commissioner of Police as the State Co-ordinator of DISPLAN and in turn by members of the Victoria Police under her management and control including those at the SERCC, the DERCs and the MECCs (Victoria Police Statutory Duty to Warn).
Particulars
The statutory responsibility to warn is to be inferred from the operation of sections 4A, 5, 10(1), 11, 13, 15, and 17 the EM Act requiring, inter alia, the Commissioner of Police as the State Co-ordinator of DISPLAN to co-ordinate the activities of agencies (including Victoria Police itself) having roles or responsibilities in relation to the response to emergencies, and requiring the Minister for Police and Emergency Services to publish DISPLAN.
The Victoria Police Statutory Duty to Warn was owed by Victoria Police to the personal injury claimants referred to and defined in paragraph 202 below.
Particulars
The object of protecting the personal injury claimants is to be inferred from the following:
(i) The proper construction of the EM Act.
(ii) The proper construction of DISPLAN.
62 Before I turn to the analysis of whether these provisions are capable of creating a statutory duty, there is a point I should make here. The pleading of the statutory duty and particularly the identification of those Victoria Police officers who are said to owe a statutory duty is less than satisfactory. The reference at times to "Victoria Police" as an entity and at other times to either particular persons or various roles filled by Victoria Police officers pursuant to DISPLAN is confusing, if not embarrassing in the pleading sense.
63 Notwithstanding these concerns, the question is whether Victoria Police officers owed a statutory duty arising out of the EMA to Mrs Matthews and the group members who suffered personal injury or those with claims arising out of the deaths of those who perished in the Kilmore East fire.
64 A claim asserting breach of a statutory duty is more amenable to summary dismissal[40] than an application to dismiss a claim alleging common law negligence. This is because the question as to whether a statute confers a private right is one of construction and not dependent upon a substratum of facts. As Dixon J said in the seminal case of O'Connor v SP Bray Ltd:[41]
The received doctrine is that when a statute prescribes in the interests of the safety of members of the public or a class of them a course of conduct and does no more than penalise a breach of its provisions, the question whether a private right of action also arises must be determined as a matter of construction.[42]
66 Byrne was a strike out case in which the High Court was required to consider whether an industrial award made pursuant to the Industrial Relations Act 1988 (Cth), which imposed a penalty for its breach gave the aggrieved workers a cause of action for statutory breach against their employer. The Court held that it did not, and re-stated the principle as follows:
A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons is, upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage.[45]
67 The Court of Appeal in Gardiner v State of Victoria[46] was required to consider whether a provision of the Accident Compensation Act 1985 which required an employer to provide employment for an injured employee during a specified period gave the employee a statutory right to bring a private action. The provision also provided for a criminal penalty in the event of breach by the employer. Phillips JA (with whom Winneke P agreed), said as follows:
The fundamental task, then, is to determine whether the statute evinces an intention that the individual should have a right of action for breach of the statutory duty.[47]
His Honour then cited the statement in Byrne I have extracted above and went on to say:
Thus it is often asked whether, upon a proper consideration of the scope and purpose of the statute as a whole, it can be said that the Act which contains the particular obligation at issue was passed primarily for the general good; for if the statute as a whole can fairly be characterised as passed primarily for the general good rather than for the benefit or protection of some only within the wider community, that is nowadays regarded as pointing strongly against a Parliamentary intention that an individual should be able to sue for non-compliance with some particular provision. On that footing, legislation providing for the general regulation of prisons has been held to give no private right of action for breach, though such legislation doubtless operated, at least in part, to protect the inmates: R v Deputy Governor of Parkhurst Prison Ex parte Hague. So too, social welfare legislation, setting out the duties of authorities relating to the protection of children against abuse, has been held to create no private right of action: X v Bedfordshire County Council.[48] (citations omitted)
68 It follows from these statements of principle that there are two questions which must be answered affirmatively:
(a) Did the legislature in enacting the EMA intend to impose an obligation upon police officers carrying out particular roles and functions pursuant to DISPLAN; and
(b) Did the legislature intend to confer a private right upon an individual so that he or she could sue for non-compliance? As part of this analysis, one must ask whether the legislature intended, in imposing an obligation under EMA, to benefit a particular class of persons as opposed to the community generally or, to put it another way, was it passed primarily for the general good.
69 These are both questions of statutory construction. The answer to these questions requires analysis of the purpose and intention of the Act having particular regard to the stated objectives within the legislation itself. In determining the intention of the legislature, and bearing in mind the provisions of the Interpretation of Legislation Act (Vic) 1984, one examines the nature, scope and terms of the statute, including the particular evil against which it is directed, the nature of the conduct which is prescribed and the pre-existing state of the law and the general circumstances surrounding the introduction of the particular provisions.[49]
70 One of the difficulties in endeavouring to ascertain the legislative intention is that identified by Dixon J in O'Connor - rarely will it be obvious that Parliament intended to confer a private right upon a particular class.[50]
71 Even allowing for a degree of judicial insight, as to the legislative intention, I have concluded that the provisions of the EMA were not intended to confer a private right of action upon persons who suffered injury or those with dependency claims as a result of the Kilmore East fire. I say that for the following reasons.
72 First, as is demonstrated by the stated purpose and objectives of the Act (ss 1 and 4A), the intention of the EMA is to set up a structure to facilitate the management of an emergency in relation to prevention, response and recovery. The aim of the legislation is clear: to establish a cohesive structure by which an emergency can be managed. The concept - as I perceive it - is that there is a known and understood structure of management for prevention, response and recovery to an emergency, of any sort.
73 Those objectives are borne out by a number of subsequent provisions. In relation to response, there is the establishment of a number of designated positions, as set out at [52] above. By the publication of DISPLAN, the roles of the controlling officers and particular organisations (which are diffuse) are set out and can be acted upon in the event of an emergency. Whatever the emergency, the intention is that the key players know who is in charge at particular levels and what their responsibilities are.
74 The wording of s 10(1) emphasises this point. It does not mandate the contents of DISPLAN, rather it requires its preparation and review which is directed to "the co-ordinated response to emergencies" of whatever kind - "by all agencies having roles or responsibilities in relation to the response to emergencies."
75 Sections 15 and 17 also demonstrate the role which DISPLAN is designed to fulfil. Taken together, the two provisions provide for the establishment of a cohesive structure to deal with foreseeable emergencies, ensuring that each agency (be it State or private) involved in dealing with such an emergency (whatever it may be) is aware of its own role and the roles of other agencies.
76 Nothing in these provisions even vaguely implies that the legislature intended to impose an obligation upon particular persons or organisations identified in DISPLAN, (and particularly police officers) which would give rise to a private right - to the contrary, I think that purpose is to provide those bodies with the knowledge and understanding as to who is responsible for what particular activity in the event of an emergency.
77 Such an analysis is consistent with the Second Reading speech on 27 March 1986 in which the Minister said:
A comprehensive management framework is needed so that we can take measures to prevent disasters and facilitate recovery from the effects of disasters as well as to combat the events themselves and provide for immediate post-disaster relief. The management framework needs to be effectively integrated, so that a consistent set of policies and programs can be put in place to cope with events of any scale, whatever the origin.[51]
78 Second, any specific obligation to warn or to co-ordinate warnings as is alleged can only be gleaned from DISPLAN, not the EMA, which deals specifically with warnings to the public in clauses 3.2 and 3.4. There is no mention in the EMA of any detail of the management of emergencies and particularly of any obligation to give a warning as to imminent emergencies or their potential consequences. This, of itself, might not be fatal. As O'Connor demonstrates, a statutory duty may arise out of a delegated piece of legislation. However, as was said in Byrne, it is in the statute itself that one looks to for the implication of the duty. McHugh and Gummow JJ said:
Even where the duty in question is created by delegated legislation in the form of regulations made under power conferred on the executive by statute, there is an added difficulty in discerning the existence of a civil sanction for breach. The question then as Fullagar J pointed out in Darling Island Stevedoring and Light Ridge Co Ltd v Long is where the statute gives power to create by regulation duties enforceable by action of the suit of a person injured by the breach thereof. If the statute does not expressly confer on the executive the power by regulation to create an action for damages at the suit of any person injured by breach of the substantive provision of the regulations, it must be difficult to construe the statute of the delegated legislation as impliedly bringing about that result.[52] (emphasis added and citations omitted)
The appellants' argument tended to focus upon the award itself rather than the Act. But an award is not a statute and if a duty imposed by an award is to be regarded as a statutory duty enforceable by way of a civil action for damages, then the necessary intention that it should be so regarded must ultimately be found in the Act and not the award. The Act discloses no such intention and, indeed, cannot do so in the absence of any specification of the duties which might be imposed by an award. On the other hand, the Act can and does disclose a contrary intention in providing a means for the enforcement of awards which does not contemplate the existence of private rights enforceable by way of an action for damages.[53]
79 Even accepting, without deciding, that DISPLAN has statutory force akin to a delegated instrument (given that it has, by way of ss 10, 15 and 17, a legislative genesis), there is nothing in the EMA itself which suggests that DISPLAN's contents are intended to give rise to a private right of action. To the contrary, the emphasis is upon preparation, review and dissemination of DISPLAN to the disparate organisations involved in responding to an emergency.
80 The parts of DISPLAN relied upon by SPI and related to warnings are set out at [52] and [53]. The centrepiece of the argument against the State is the requirement that co-ordinators (police officers) consider the giving of warnings and, by clause 3.4, there exists an obligation, in certain circumstances, to give warnings. The criteria for the form of the warning is also set out. But, as has been seen, the contents of DISPLAN alone are insufficient to sheet home an arguable statutory duty unless the enabling legislation leads to that implication. To permit the provisions of DISPLAN to determine the existence of a statutory duty would be to let the tail wag the dog. As I have said previously, I do not accept that the EMA itself creates an obligation which could give rise to a statutory duty.
81 It follows that the first question must be answered in the negative.
82 Third, it is not possible to conclude that the EMA is directed towards protecting a specific class. This point was made by Phillips JA in Gardiner.[54] Another example is to be found in Byrne, where the High Court said:
Having regard to the public aims of the legislation, its scope and purpose is not such as to disclose any intention to benefit or protect employees or any other class of persons by conferring on them a right of action at common law for breach of an award obligation.[55]
83 The aim of the EMA is to ensure a coordinated response to emergencies to protect, as best as an act of Parliament can, the public as a whole from natural and man made disasters. It is to be contrasted to those pieces of legislation which have been found to give rise to a private duty such as the Scaffolding and Lifts Act 1912 (NSW) and regulations made under the Occupational Health and Safety Act 2004 (Vic). That is not to say that the legislation need, by its precise wording, be directed to protecting a certain class of persons (such as those working with lifts, or those carrying out manual handling tasks). The particular provision, however, must be capable of being interpreted with some clarity as conferring a benefit on a particular class, such as in this case, those likely to be affected by the bushfires. This is not apparent nor can it be implied from the EMA.
84 Rather, as I see it, the relevant provisions of the EMA (as demonstrated by its stated purpose and objectives) are for the protection of the public as a whole in relation to a wide range of disparate potential emergencies.
85 In summary, I am not persuaded that the EMA, or DISPLAN, can be construed as conferring upon an individual a right of action based upon a failure by a police officer to comply with certain provisions of DISPLAN. The second question is, therefore, answered in the negative.
86 It follows that this part of Mrs Matthews' claim, and that of the group members and the counterclaims of SPI and USC have no prospect of success and is doomed to failure.
87 I do not think any of the other considerations I have set out at [22] inhibit the dismissal of this part of the claim.
88 The State also seeks summary judgment in respect of the claim brought against it in negligence. It says that the pleaded claims of negligence by Mrs Matthews and the group members (and the counterclaims by SPI and USC) have no real prospect of success and should also be dismissed at this stage.
89 Although the provisions of the EMA and DISPLAN play a part in the allegation that the State owed a duty of care to Mrs Matthews and the group members, the considerations are quite different to those involved in the analysis of the statutory duty claim.
90 The exercise here is whether there is a realistic prospect of success of Mrs Matthews establishing that a common law duty was owed by police officers to herself and the group members, having regard to their powers and functions as provided by the EMA and DISPLAN. As will be seen, such an analysis (unlike that relevant to the statutory duty) is not confined to the relevant legislative regime.
91 The scope and content of the common law duty allegedly owed by Victoria Police officers to Mrs Matthews and the group members who sustained personal injury in general terms is as follows:
(a) A duty to warn those who may be affected by the approach of the Kilmore East fire and/or the need to evacuate (called the Victoria Police duty to warn);[56]
(b) A duty to co-ordinate the activities of Victoria Police members, DSE and/or the CFA so that appropriate warnings were given (called the Victoria Police co-ordination duty);[57]
(c) A duty to supervise the CFA or DSE if they assumed the Victoria Police's responsibility to give warnings to those who may be affected by the approach of the fire (called the Victoria Police supervisory duty).[58]
92 The first aspect of the common law duty, the duty to warn, is pleaded as follows:
(a) that Victoria Police had knowledge and expertise in relation to bushfire risks and the need to provide adequate advanced warnings to the public;
(b) that on 5 and 6 February 2009, Victoria Police knew that the fire agencies (CFA and DSE) had made announcements about the high risk of bushfires in that season and particularly leading up to 7 February 2009;
(c) that specific warnings to particular communities and residents, rather than generalised warnings, were necessary;
(d) that it was reasonably foreseeable that the fire would head south or south-east after commencing at Kilmore East and may cause personal injury or death to persons in the Kilmore fire area;
(e) that the persons who suffered personal injury were vulnerable to the impact of fires and were dependent for protection upon Victoria Police to ensure that persons at risk would be provided with bushfire warnings; and
(f) that Victoria Police knew or ought to have known that the provision of bushfire warnings was necessary to enable persons threatened by the fire to take steps to avoid the risk of it.
93 The duty to warn was formulated in the following way:
(a) to ensure, and alternatively take reasonable steps to ensure, that bushfire warnings were given to persons at risk of the risk that a bushfire would be likely to reach a particular place by a particular time so as to enable persons at risk to take steps to avoid personal injury, loss and damage to themselves and/or their dependants;[59] and
(b) to provide bushfire warnings to persons at risk of the risk that a bushfire would be likely to reach a particular place at a particular time so as to enable persons at risk to take steps to avoid the risk so as to minimise or avoid personal injury or death.[60]
94 The pleaded case goes on to allege particulars of the breach, which essentially were to the effect that there were no timely or adequate bushfire warnings to persons at risk. It was then asserted that the injuries sustained by claimants as a result of the fire were caused by Victoria Police breaching the duty.
95 The second aspect of the common law duty is described as "Victoria Police Co-ordination duty to personal injury claimants". Confusingly, this was also described as a Victoria Police "statutory" supervisory duty. It was clear from discussion with counsel that the allegation was not that this was a statutory duty, but rather that it formed part of the asserted common law duty. This allegation is made against specific Victoria Police officers - namely "the Commissioner, the Deputy Commissioner" and officers with roles identified under DISPLAN.[61]
96 It was said that each had or had assumed a duty:
(a) to co-ordinate and supervise the activities themselves, the CFA and/or DSE so as to ensure;
(b) further alternatively, to take other reasonable steps to ensure, that:
(c) responsibility for the preparation and issue of bushfire warnings to communities who might be affected by bushfire (the responsibility to warn) as between agencies was clearly defined and communicated to all relevant agencies;
(d) the responsibility to warn was understood and accepted by all relevant agencies;
(e) the relevant agencies or agencies having the responsibility to warn had adequate resources and procedures to ensure timely and adequate bushfire warnings were prepared and issued; - so as to enable persons at risk to take steps to minimise or avoid personal injury and death from bushfires.
97 It was then asserted that the failure to communicate and co-ordinate the activities of the CFA and/or the DSE or themselves meant that persons at risk did not receive adequate bushfire warnings and therefore were deprived of the opportunity to evacuate or find appropriate shelter.
98 The third aspect of the common law duty is based, as I follow it, on an asserted obligation to supervise the activities of the CFA or DSE - which was dependent upon an assertion that any obligation on the part of Victoria Police to warn had been assumed by either the CFA or the DSE; it was then said that Victoria Police had a duty to supervise the CFA and/or the DSE or to take reasonable steps to ensure that they met any duty to warn that they might owe to various communities or groups threatened by the fire.
In the premises, if SP Ausnet is held liable to the personal injury claimants in respect of any personal injury loss and damage then, on the grounds pleaded in paragraphs 175-221 herein, SP Ausnet is entitled pursuant to the provision of Part IV of the Wrongs Act to recover contribution from the State of Victoria arising from the acts or omissions of members of Victoria Police for which the State of Victoria is liable under section 23(1)(b) of the Crown Proceedings Act 1958 (Vic) and sub-section 123(2) of the Police Regulation Act in respect of that personal injury loss and damage in such amount as may be found by the Court to be just and equitable having regard to the extent of Victoria Police's responsibility for the personal injury loss and damage.
100 Before I turn to consideration of the application, it is necessary to make a couple of points. As with the claim for breach of statutory duty, the pleading of the common law duty is confusing, it refers at times to "Victoria Police", generically and at other times to particular Victoria Police officers occupying specific positions as set out in the EMA and DISPLAN. There was justifiable complaint by counsel for the State as to the inconsistency in the pleadings and the difficulty in identifying clearly upon whom any alleged duty is cast. There is no such body as the Victoria Police. As has been seen, the Chief Commissioner is responsible for the operations of the force. Civil liability for the activities of police officers can only be sheeted home through either s 23(1)(b) of the CPA or s 123(2) of the PRA[62], as discussed previously and as is recognised by the pleadings.[63] I have, therefore, assumed that any references to Victoria Police generically must mean individual officers of the Victoria Police.
101 Next, there is only an oblique reference to the exercise of statutory powers or functions (either in the form of negligent exercise or the failure to exercise such powers) in the pleading of the common law duty - by reference in the particulars attached to [197] of the SPI counterclaim, that DISPLAN "required Victoria Police to issue such warnings as aforesaid and/or to consider the need to alert the public as aforesaid and the Commissioner of Police was the State Co-ordinator of DISPLAN".
102 I was told by counsel for SPI that it proposed to rely upon the provisions of the EMA and DISPLAN as set out in the claim for breach of statutory duty in arguing that as part of the common law duty there was either a failure to exercise or a negligent exercise of the statutory powers or functions conferred by those provisions. The argument was conducted on that basis.
103 Notwithstanding the problems associated with the pleadings, I think the gist of the allegations of the common law duty are as follows:
(a) that a number of Victoria Police officers (including the Chief Commissioner and Deputy Chief Commissioner) were in positions of responsibility in relation to bushfires, (and particularly the Kilmore East fire);
(b) a part of the functions and duties of those officers under the EMA and DISPLAN, or as part of their policing duties, was to consider whether warnings should be given to members of the public (including communities and individuals) threatened by the Kilmore East fire and, if thought appropriate (or directed by a control agency), to give warnings to those at risk from the approach of the fire;
(c) that those officers were in a position to give warnings about the approach of the fire and the risks it may pose to the safety and lives of those threatened by it;
(d) that as part of the function and duties, officers had, under the EMA and DISPLAN, or as part of their policing duties, a duty to co-ordinate the activities of the Victoria Police officers, CFA and DSA so that appropriate warnings were given as to the approach of the fire;
(e) that as part of the functions and duties, officers had, under the EMA and DISPLAN, or as part of their policing duties, a duty to supervise the giving of warnings by the DSE and the CFA, if those bodies assumed the role of providing warnings;
(f) that it was reasonably foreseeable that the fire may threaten the safety of persons in its path;
(g) that many persons threatened by the approach of the fire were dependent upon the receipt of timely and accurate warnings as to the spread of the fire and other relevant information germane to their safety; and
(h) that the State is liable for any act or omission of those officers in the carrying out of their duties in relation to the Kilmore East fire.
104 Turning now to the relevant principles, it is settled that a person or a body exercising a statutory power or a function may owe a common law duty of care, independent of any statutory duty imposed by a particular piece of legislation. There is a line of authority in the High Court which provides guidance on this issue: Sutherland Shire Council v Heyman;[64] Pyrenees Shire Council v Day;[65] Crimmins v Stevedoring Industry Finance Committee;[66] Sullivan v Moody;[67] Graham Barclay Oysters Pty Ltd v Ryan;[68] Stuart v Kirkland-Veenstra.[69]
105 It is helpful, on this issue, generally, to set out what was recently said in Stuart by Crennan and Kiefel JJ:
In principle a public authority exercising statutory powers should not be regarded by the common law any differently from a citizen. It should not be considered to have an obligation to act. But the position of a public authority is not the same as that of a citizen and the rule of equality is not regarded as wholly applicable. It has public functions and it has statutory powers which the citizen does not. Some powers might be effective to avert or minimise a risk of harm to particular persons or their property, but the statute might not oblige their use. The relevant concern of the common law is whether a public authority might nevertheless be considered to be under a duty of care which obliges it to exercise its powers in a particular way.
The common law duty in question is to be distinguished from one arising under the statute which provides the public authority's powers. The action for breach of statutory duty, although itself a tort, is regarded as distinct from the tort of negligence. It will be necessary to return to the elements of this action in more detail later in these reasons. In a case where a general duty of care is alleged, it is said that the statute cannot itself be regarded as the source of the duty; rather it is the foundation or setting for it. The duty of care is said to arise independently of the statute. The existence of statutory powers is necessary, but not sufficient, to give rise to a duty of care.
No guiding principle, by which an authority might be considered to be obliged to exercise its powers at common law, has been identified; the search continues. There is agreement that the statutory powers in question must be directed towards some identifiable class or individual, or their property, as distinct from the public at large.[70] (citations omitted)
106 In Graham Barclay Oysters, McHugh J said as follows:
A public body invested with a discretionary statutory power may be in breach of a common law duty of care if it fails to exercise the power for the benefit of an individual or class of individuals. In these cases, failure to exercise the power given constitutes actionable negligence that sounds in damages. In determining whether a public authority has breached a common law duty by failing to exercise a statutory power, it is essential to examine the words and policy of the legislation. That is because the legislation may indicate that the legislature has legislated to cover the field and excluded all common law duties of care. In other cases, the imposition of a common law duty may be inconsistent with or undermine the effectiveness of the duties imposed by the statute. In some cases, the circumstances of the case - for example, active intervention by the authority or reliance by the plaintiff - may establish a duty of care. But the legislation may give the authority such a wide discretion to exercise the power in question that the tribunal of fact cannot find that the failure to exercise the power constituted a breach of the duty.[71] (citations omitted)
107 I have concluded that the EMA and DISPLAN are, arguably, capable of establishing the statutory basis for the functions and roles performed by Victoria Police officers on Black Saturday in response to the Kilmore East fire. Further it would be inappropriate to consider summary dismissal in a group proceeding alleging a common law duty where findings of fact will play a major part in determining whether such a duty exists. I think, for these two primary reasons, that there is an arguable case that Victoria Police officers owed a common law duty to Mrs Matthews and the group members who suffered personal injury or loss of dependency.
108 I now explain my reasoning on these two points, and on a couple of subsidiary matters relevant to summary dismissal.
109 As the High Court authorities demonstrate, the starting point for consideration of the existence of a common law duty (but not the only consideration) is the statutory provisions which set out the relevant functions and powers of the authority or person.[72]
110 The first question, then, is whether it is reasonably arguable that EMA and DISPLAN provide the statutory foundation for a common law duty of care on the part of relevant police officers in relation to the provision of warnings as set out at [91] above.
111 As we have seen, the statutory genesis and implementation of DISPLAN is to be found in ss 10, 15 and 17 of the EMA. DISPLAN then sets out the roles, or functions, to be performed by various members of Victoria Police in response to an emergency. DISPLAN provides that each of the response co-ordinators are Victoria Police officers. DISPLAN then specifies that the co-ordinators have responsibilities for ensuring the co-ordination of the other agencies which respond to emergencies (clause 3.2). Amongst the specified roles (or functions) of co-ordinators is ensuring that consideration has been given to alerting the public to existing and potential dangers arising from a serious emergency and the need for evacuation. Those functions are then further detailed under clause 3.4 "operational arrangements", and particularly that of the provision of warnings. It is the responsibility of a co-ordinator (a police officer), upon the request of a control agency (which may be the CFA or DSE), to ensure that a warning is issued both to other agencies and to potentially affected communities.
112 I do not accept the argument put on behalf of the State that, in effect, it is inconceivable that DISPLAN could provide the basis for the actions and conduct of a police officer responding to the Kilmore East fire on Black Saturday. DISPLAN specifically sets out a number of functions to be carried out by nominated police officers, relevant to warnings. In my view, it is arguable, at least, that DISPLAN provides the statutory basis for a common law duty of care. I also repeat what I said at the commencement of these reasons. This is a group proceeding and identification of the particular functions and powers of the police officers cannot, at this stage, be overly prescriptive. It is enough to conclude that there is an arguable statutory power or function invested in particular officers to establish a prima facie case which has a realistic prospect of success.
113 The second point is that an examination of the statutory regime in isolation does not provide the answer as to the existence of a duty of care.
114 Last week in Kuhl v Zurich Finance Services Australia Ltd,[73] French CJ and Gummow J emphasised that in determining a duty of care, its scope and content "those questions are determined by considering reasonable foreseeability and the 'salient features' of the relationship between the plaintiff and the defendant".[74]
There can be no duty to act in a particular way unless there is authority to do so. Power is therefore a necessary condition of liability but it is not a sufficient condition. Statutory power to act in a particular way, coupled with the fact that, if action is not taken, it is reasonably foreseeable that harm will ensue, is not sufficient to establish a duty to take that action. Rather, as was pointed out in Graham Barclay Oysters Pty Ltd v Ryan, the existence or otherwise of a common law duty of care owed by a statutory authority (or in this case the holder of statutory power) "turns on a close examination of the terms, scope and purpose of the relevant statutory regime". Does that regime erect or facilitate "a relationship between the authority [here the holder of statutory power] and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence"?
Evaluation of the relationship between the holder of the power and the person or persons to whom it is said that a duty of care is owed will require examination of the degree and nature of control exercised over the risk of harm that has eventuated, the degree of vulnerability of those who depend on the proper exercise of the relevant power, and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. Other considerations may be relevant.[75] (emphasis added and citation omitted)
116 Caltex Refineries (Qld) Pty Ltd v Stavar[76] did not involve an argument about the exercise of statutory powers. However, the salient features relevant to the imposition of a duty of care in a novel case - which this is - were set out by Allsop P in the following way:
This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the "salient features" or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.
These salient features include:
(a) the foreseeability of harm;
(b) the nature of the harm alleged;
(c) the degree and nature of control able to be exercised by the defendant to avoid harm;
(d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
(e) the degree of reliance by the plaintiff upon the defendant;
(f) any assumption of responsibility by the defendant;
(g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;
(h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;
(i) the nature of the activity undertaken by the defendant;
(j) the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant;
(k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;
(l) any potential indeterminacy of liability;
(m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;
(n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests;
(o) the existence of conflicting duties arising from other principles of law or statute;
(p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and
(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.
There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.[77]
117 So here, if we take Mrs Matthews' case, relevant evidence would include whether a police officer had taken it upon himself or herself to issue warnings or to take steps to inform Mrs Matthews or members of the threatened communities as to the approach of the fire. What was the state of the police officer's knowledge of the impending fire and its potential risks? What was the gravity of the situation as perceived by the police officer? What difficulties were associated with the giving of warnings to potential communities? The Court would also need to know whether Mrs Matthews was vulnerable in the sense that she had no other source of information as to the approach of the fire and to what extent, if any, that had she relied upon warnings given by officers (or which she thought would be given by police officers) exercising their functions under DISPLAN. The high risk of great harm to such persons, as was apparent in Crimmins, may be a relevant factor.
118 In recent years the High Court has emphasised the question of control as being of "critical significance" in relation to the imposition of a duty of care.[78] For instance in Crimmins, the evidence at trial disclosed that control in a real sense was exercised on the waterfront over the waterside workers by officers of the Australian Stevedoring Industry Authority.[79] The ability of those officers, consistent with the powers entrusted to them, to direct waterside workers to particular ships was central to the determination of the court that a duty of care arose. Here the police officers had no control over the fire. However, at least arguably, officers on the ground and in the co-ordination roles in exercising their functions pursuant to DISPLAN had control over the manner in which warnings were given and determined their content. They also, at least arguably, had control over the co-ordination of activities of other organisations which may have been responsible for the provision of warnings. These matters can only be fleshed out at a trial. Determining the "real" degree of control (if any) by the police officers requires examination not only of the statutory powers or functions provided in DISPLAN, but also as to what happened on Black Saturday or, perhaps, prior to it.
119 Other questions may also arise relevant to the imposition of a duty. For instance, had there been any inspection by police officers of the threatened area prior to the approach of the fire? In Pyrenees Shire Council for example, it was the exercise of the Council officer's power in inspecting the premises that set up (at least in part) the duty of care.
120 The analysis that was undertaken in cases such as Pyrenees Shire Council, Crimmins, Graham Barclay Oysters and Stuart depended upon findings of fact made at the trial. Only Sullivan was decided on a pleading point and, essentially, it was to the effect that to impose a duty of care would be to create inconsistent obligations, given the statutory and professional responsibilities of persons caring for young children. That is not the case here. Here, considerations of the type that arose in Pyrenees Shire Council, Crimmins, Graham Barclay Oysters and Stuart will need to be examined - such as the nature of the functions or powers of the relevant police officer, vulnerability, reliance, control, assumption of responsibility, the level of potential harm and knowledge of the potential danger, to name some that readily come to mind.
121 There are several other matters which militate against summary dismissal. The pleaded case, at least in its present guise, is not solely dependant upon the exercise of statutory power. Police officers exercise common law functions or powers as well as statutory functions or powers. It may be that officers placed themselves in a position on Black Saturday in responding to the fire so that as a result of a combination of factors a duty of care arose to an individual or individuals independent of the EMA or DISPLAN. For instance, an officer may have assumed responsibility for managing a particular situation and, that conceivably, may point to a duty of care to those under his or her direction. Of course there may be many other competing considerations (such as matters of public policy, inconsistent obligations, consistency with other legislation) which militate against the imposition of such a duty. However that can only be sorted out after the whole of the circumstances of the case have been examined - not on a summary judgment application. This observation is all the more apposite when the consideration of this issue involve claims of a large number of group members.
122 The following flows from the previous point. This claim is not just that of Mrs Matthews but, I surmise, will involve over a thousand group members who suffered physical and psychiatric damage or the loss of a loved one.
123 Each may have a different story about how he or she came to be injured, or how a family member perished. More importantly, on this issue each may have a different account as to what information was received about the impending fire (or, perhaps, the lack of information) and from whom such advice was received. In some cases, the actions taken by police officers in one area may be entirely different to actions or no action taken in another area. The vulnerability of the individuals may vary; their reliance (or perhaps lack of it) will differ from person to person. It would be unjust in the extreme to contemplate summary dismissal on this part of the claim, given this consideration alone. Of course, it is inevitable that this issue will have ramifications as to how these claims are to be determined in the context of a group proceeding, but nevertheless, it highlights the caution necessary in approaching this application.
Common experience teaches that it is usually more efficient and just to consider the viability of a cause of action when the facts said to support it are adduced and the suggested action can be judged with a full understanding of all relevant evidence. Testimony gives colour and content to the application and development of legal principle. That is why leave is usually required for an appeal from interlocutory orders. Appellate courts, including this Court, will usually require evidence to be adduced and a trial concluded before considering the application of the law to that evidence. Out of the detail of the evidence ultimately proved, affecting the relationship of the respondent and the appellant, may arise a finding of a duty of care which the common law of negligence would uphold.[82] (emphasis added)
125 In a claim such as this, particularly given the representative nature of the proceeding, it is only when all the relevant considerations, including the scope and extent of the powers and functions of the police officers are considered that the existence of a duty (or otherwise) can be determined.
126 Finally, I should mention s 64 of the Civil Procedure Act which permits a Court to let a case go to trial even if there is no real prospect of success. If I had thought that the common law claim was close to hopeless, I would, nevertheless, have applied the proviso contained in that section. I would have done so because this is a group proceeding and the factual matrix is, I think, integral to determining whether there was any common law duty owed by police officers to Mrs Matthews and the group members. For the reasons I have set out I think that this is a dispute "of such a nature that only a full hearing on the merits is appropriate".[83]
127 The claim by Mrs Matthews and the group members against the State has a realistic prospect of success. The State's application on this point should be dismissed. A fortiori the State's application against SPI and USC should be dismissed.
128 However, the pleadings at the moment do not accurately reflect the case that was argued before me. I think it important that Mrs Matthews, SPI and USC plead out as accurately as they can their case in negligence. This is necessary, in any event, given that I have struck out the statutory duty claim which contains the relevant parts of the EMA and DISPLAN. The new pleading should set out those provisions of the EMA and DISPLAN which form part of the case in negligence. It should specify as far as is practicable at the present time the roles or positions of those officers whom it is said owed a duty to Mrs Matthews and the group members. The generic pleading of "Victoria Police" is confusing and unhelpful and must be discarded.
129 The claim for breach of statutory duty against the State is untenable and paragraphs of the relevant claims of Mrs Matthews, SPI and USC will be struck out.
130 The claim in negligence by Mrs Matthews, SPI and USC against the State is tenable and will not be dismissed. It should, however, be re-pleaded consistent with these reasons. The paragraphs of the relevant claims of Mrs Matthews, SPI and USC will be struck out with a right to re-plead.
131 Subject to hearing from counsel, I will make the following orders:
(a) the second Amended Statement of Claim of the plaintiff
(b) the counterclaims of SPI Electricity Pty Ltd and
(a) paragraphs 174A to 222 of the Plaintiff's second
(b) paragraphs 175 to 224 of the Notice of Counterclaim of
(c) paragraph 100 of the Notice of Counterclaim of Utility
Corporation Limited, have leave to replead any claim against
the State of Victoria for breach of common law duty.
[1] Matthews Ruling No. 1 [2011] VSC 167.
[3] The first defendant, SPI Electricity Pty Ltd.
[4] The second defendant, Utility Services Corporation Pty Ltd.
[6] The third, fourth and fifth defendants, the Secretary to the Department of Sustainability and Environment, the Country Fire Authority and the State of Victoria - collectively referred to as "the State defendants".
[7] [2010] HCA 28; (2010) 241 CLR 118 - "Spencer".
[9] Victorian Law Reform Commission, Civil Justice Review Report 14 (2008), 257-358.
[12] Woolf, Access to Justice: Final Report to the Lord Chancellor on the civil justice system in England and Wales (1996) [32]-[34].
[15] Spencer [24]. See also Wheelahan & Anor v City of Casey & Anor (No. 3) [2011] VSC 15.
[18] Hamblen J in Credit Suisse International v Ramot Plana OOD [2010] EWHC 2759 set out the principles for an application in England or Wales. I have adopted that statement in light of the Australian authorities.
[19] Section 33Z, s 33ZB of the Supreme Court Act.
[23] Hogg, Liability of the Crown, 3rd edition, p6-7 - The Crown can do no wrong.
[26] [2010] VSC 441, "Slaveski".
[29] [2002] VSCA 177; [2002] 6 VR 326, "Horvath".
[37] [175]-[196] of the SPI counterclaim.
[40] See Preston v Star City Pty Ltd [1999] NSWSC 1273; McGuirk v University of New South Wales [2009] NSWSC 1424.
[41] [1937] HCA 18; (1937) 56 CLR 464 "O'Connor".
[43] [1967] HCA 31; (1967) 116 CLR 397, 404-405 "Sovar".
[44] [1995] HCA 24; (1995) 185 CLR 410 - "Byrne".
[46] [1999] VSCA 100; [1999] 2 VR 461 - "Gardiner".
[50] O'Connor 477-478; see also Byrne 424, although examples can be found, such as s 71 of the Forests Act 1958 (Vic). See Cohen v State of Victoria & Ors [2010] VSC 371 [58].
[51] Parliamentary Debates (Hansard) "Emergency Management Bill" 27 March 1986.
[56] [197]-[203] of the SPI counterclaim.
[65] [1998] HCA 3; (1998) 192 CLR 330 - "Pyrenees Shire Council".
[66] [1999] HCA 59; (1999) 200 CLR 1 - "Crimmins".
[67] (2001) 207 CLR 562 - "Sullivan".
[68] [2002] HCA 54; (2002) 211 CLR 540 - "Graham Barclay Oysters".
[69] [2009] HCA 15; (2009) 237 CLR 215 - "Stuart".
[70] Ibid [129]-[132]. See also [48]-[49] per French J.
[74] Ibid [20]. Although in dissent on the result, this statement, I suggest, is non-controversial.
[78] Stuart [114], Crimmins [43]-[46].
[80] [2010] VSCA 113 [8].
[83] Section 64(b) of the Civil Procedure Act.
(2010) 241 CLR 118
(1906) 3 CLR 969
(1937) 56 CLR 464
(1967) 116 CLR 397
(1995) 185 CLR 410
(1985) 157 CLR 424
(1998) 192 CLR 330
(1999) 200 CLR 1
(2001) 207 CLR 562
(2002) 211 CLR 540
(2009) 237 CLR 215
(2009) 75 NSWLR 649
(1992) 30 NSWLR 1