Michael Eburn Senior Lecturer School of Law University of New England ARMIDALE NSW 2351

What is the issue? Is it: 1.‘Will we be sued?’ or 2.‘Will we win?’

Why don’t people sue? Evidence is that more people could sue than do. Why don’t they sue? We really can’t say. Perhaps they:  do not realise they could seek a legal remedy;  are not able to afford it;  have language barriers;  live in remote areas;  don’t have the time;  couldn’t be bothered;  think their needs are being met by other sources;  the service was what they expected.

Why do people sue? For lots of reasons – eg  To prevent similar incidents occurring in the future;  To know and understand what happened and why;  To obtain monetary compensation; and  To hold individuals and institutions accountable.

Insurance companies Right of subrogation. They cannot care about the ‘public good’ or expectations. The relevant expectations are what can they expect from the legal system. Will the defendant offer something?

On a decision to sue Whether or not a person’s expectations have been met is only one factor that may be considered when deciding whether or not taking legal action will be worthwhile. The exception will be when the person expects that the fire brigade will come and quickly extinguish the fire, and that is in fact what happened.

The law’s expectations These are largely unknowable – even by the judges.

Kirby J “One day this Court may express a universal principle to be applied in determining such cases. Even if a settled principle cannot be fashioned, it would certainly be desirable for the Court to identify a universal methodology or approach, to guide the countless judges, legal practitioners, litigants, insurance companies and ordinary citizens in resolving contested issues about the existence or absence of a duty of care, the breach of which will give rise to a cause of action enforceable under the common law tort of negligence.” Graham Barclay Oysters v Ryan (2002) 211 CLR 540 [211].

And later… “… a duty of care will be imposed when it is reasonable in all the circumstances to do so.”

Reasonable expectations Are not part of modern tort law. To determine if a duty arises we look at the ‘salient features’ between the plaintiff and the defendant. Two of them are vulnerability and control: Was the plaintiff vulnerable? Was the defendant able to control the hazard?

NSW v West [2008] ACTCA 14 (5 September 2008) [26] and [27] (Higgins CJ). “A bushfire hazard is clearly a danger to persons and their property and only an organised, trained and equipped service such as the Rural Fire Service could have any prospect of averting danger from a serious bushfire. The vulnerability of the prospective victims is self- evident, particularly if they are or may be assumed to lack the resources to protect themselves.”

Are they reasonable ‘expectations’? “Prepare, stay and defend or leave early” policy is predicated on the assumptions 1.There may not a fire appliance to come you’re way and 2.You are not helpless if you take responsibility for your fire plan.

Fire Brigades Act 1989 (NSW) s 11. “... despite anything to the contrary in any Act, proceed with all speed to the fire and try by all possible means to extinguish it and save any lives and property that are in danger.”

Breach of duty Based on the standard of the reasonable person, not what the plaintiff expects. None of us are the ‘reasonable person’ We all make mistakes – it is not reasonable to expect anyone to be perfect 100% of the time, but that is no defence.

CaseHighest court Approximate time to finalisation Nelligan v MickanCourt of appeal (SA)5 years Keller v MAS and VictoriaSupreme court8 years Gardner v NTHigh Court of Australia10 years Neal v NSW AmbulanceCourt of appeal7 years West v NSW High Court of Australia6 years and still a long way to go NSW v TyszykHigh Court of Australia5 years Some cases – what does the law expect?

The cases Often decide on the issue of ‘duty’ that is (in short) there is no duty to rescue. They don’t then have to decide ‘breach’ (ie was the service ‘reasonable’). The issue of when a statutory authority established for the greater good owes a duty to an individual is complex, but does not depend on ‘expectations’.

Other cases Are decided on the question of breach or causation so they don’t have to deal with the tough question of duty! So the tough questions aren’t answered.

West v NSW Will be a defining case. The critical issues will be was there a duty and if so what was it a duty to do. Over 3000 other cases ‘waiting in the wings’!

Conclusion Managing expectations will only have a marginal legal impact. It may be partially relevant to the question of whether on not a person sues; and marginally relevant to whether or not they win. Other factors motivate the litigant – particularly insurers. ‘Expectations’ are not formally part of the legal tests.