statement of claim filed by: plaintiff · eirp act part 10 and the allocation statement titled “...

Matthews v SPI Electricity – 4788/2009

STATEMENT OF CLAIM

FILED BY: PLAINTIFF

_____ Date of Document: 30 November 2012 Filed on behalf of: The Plaintiff Prepared by: Solicitor’s Code: 564 Maurice Blackburn Tel: (03) 9605 2700 Level 10, 456 Lonsdale Street DX: DX 466 (Melbourne) Melbourne Vic 3000 Ref: RJW/3004166

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IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

SCI 2009 04788 BETWEEN : CAROL ANN MATTHEWS

Plaintiff - and - SPI ELECTRICITY PTY LTD (ACN 064 651 118) & Ors (according to the Schedule)

Defendants

(by original proceeding) AND BETWEEN: SPI ELECTRICITY PTY LTD (ACN 064 651 118)

Plaintiff by Counterclaim - and - UTILITY SERVICES CORPORATION LIMITED (ACN 060 674 580) & ORS (according to the Schedule)

Defendants by Counterclaim

(by counterclaim)

SEVENTH SIXTH AMENDED STATEMENT OF CLAIM

(filed pursuant to leave granted by his Honour Justice J Forrest on 10 November23 October 2012)

Date of Document: 30 November 29 October 2012 Filed on behalf of: The Plaintiff Prepared by: Maurice Blackburn, Lawyers; Solicitor’s Code: 564 Level 10, 456 Lonsdale Street Tel: (03) 9605 2700 Melbourne Vic 3000 DX: DX 466 (Melbourne) Ref: AJW/3004166

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TABLE OF CONTENTS

SECTION A – PRELIMINARY 5

SECTION B – SPI – STATUTORY DUTY AND NEGLIGENCE 7

SECTION C – SPI – PRIVATE NUISANCE 18

SECTION C1 – pre-1994 CAUSES – SPI DERIVATIVE LIABILITY 19

SECTION D – LOSS AND DAMAGE – CLAIMS AGAINST SPI 26

SECTION E – CLAIMS AGAINST UAM 27

UAM – common law duty to the claimants ......................................................27

Breach of duty by UAM.......................................................................................38

UAM – causation .................................................................................................39

UAM – loss and damage ....................................................................................39

Apportionability and apportionment – UAM.....................................................40

SECTION F – DSE SECRETARY – FUEL MANAGEMENT 42

DSE fuel management – statutory duties to the claimants...........................43

DSE fuel management – common law duty to the claimants.......................47

DSE – breaches of fuel management duties to the claimants .....................65

DSE Secretary – Causation...............................................................................66

SECTION G – COUNTRY FIRE AUTHORITY (“CFA”) – Fire Suppression duties 69

CFA statutory duty to the claimants .................................................................70

CFA common law duty to the claimants ..........................................................71

CFA breaches of duties to the claimants.........................................................79

CFA – causation ..................................................................................................86

SECTION H – FAILURE TO WARN – VICTORIA POLICE (“POLICE”) 88

SECTION I – FAILURE TO WARN – CFA 107

First CFA duties .................................................................................................107

First CFA statutory duty to personal injury claimants ..................................107

First CFA common law duty to the personal injury claimants ....................108

Breach of “first” CFA duties to personal injury claimants............................111

CFA “first duties” – causation and damage...................................................115

Second CFA statutory duty to the personal injury claimants......................116

Second CFA common law duty to the personal injury claimants...............117

CFA breach of “second” duties to personal injury claimants......................122

CFA “second duties” – causation and damage ............................................125

CFA duties not delegated.................................................................................126

SECTION J – FAILURE TO WARN – DSE SECRETARY 126

First DSE warnings duty...................................................................................126

Breach of First DSE warnings duty.................................................................130

First DSE warnings duty – causation and damage ......................................133

Second DSE warnings duty .............................................................................133

Breach of Second DSE warnings duty...........................................................137

Second DSE warnings duty – causation and damage ................................140

DSE duties were not delegated.......................................................................140

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SECTION K – COMMON QUESTIONS OF LAW OR FACT 141

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SECTION A – PRELIMINARY

Plaintiff

1. The plaintiff was at all material times:

(a) a joint proprietor of real property located at 55 Mullers Road at St Andrews in the State

of Victoria (“the plaintiff’s land”);

(b) the mother of Samuel Coyle Matthews (deceased) (“Sam Matthews”).

2. The plaintiff brings this proceeding on her own behalf and on behalf of the group members.

Kilmore bushfire

3. The Kilmore East-Kinglake bushfire (“the Kilmore bushfire”) is the fire that:

(a) started near Saunders Road at Kilmore East in the State of Victoria at approximately

11:45am on 7 February 2009; and

(b) burnt the area highlighted on the map titled “Kilmore Bushfire Area” and filed in the

Court in this proceeding (“the Kilmore bushfire area”).

Group Members

4. The group members to whom this proceeding relates are:

(aa) all persons identified in the “List of Registered Personal Injury Claimants” filed1 pursuant

to Order 1 2 made on 20 November 2012 14 October 2011; and

(a) all those persons who suffered personal injury (whether physical injury, or psychiatric

injury as defined below) as a result of:

1 The Orders made on 14 October 2011 require that the List of Registered Personal Injury Claimants be filed (in

the Court Registry) by 4:00pm on 6 February 2012.

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(i) the Kilmore bushfire (including, without limitation, an injury suffered as a result of

attempts to escape the Kilmore bushfire or other emergency action taken by any

person in response to the Kilmore bushfire); and/or

(ii) the death of or injury to another person as a result of the Kilmore bushfire.

where “psychiatric injury” in this group definition means nervous shock or another

psychiatric or psychological injury, disturbance, disorder or condition which has been

diagnosed as such in a diagnosis given to the person by a medical practitioner prior to

31 January 2012; and

(b) the estates of or dependants of any person who died in or as a result of the Kilmore

bushfire (including, without limitation, a death resulting from attempts to escape the

Kilmore bushfire or other emergency action in response to the Kilmore bushfire); and

(c) all those persons who suffered loss of or damage to property as a result of the Kilmore

bushfire (including, without limitation, loss or damage resulting from emergency action

taken by any person in response to the Kilmore bushfire); and

(d) all those persons who at the time of the Kilmore bushfire resided in, or had real or

personal property in, the Kilmore bushfire area and who suffered economic loss, which

loss was not consequent upon injury to that person or loss of or damage to their

property;

but provided that:

(i) persons in (b), (c) or (d) shall not be treated as making a claim for personal injury

in these proceedings unless they are also covered by (aa) or (a) above.; and

(ii) the group members in this proceeding do not include the following persons:

(A) the Commonwealth, a State or a Territory; or

(B) a Minister of the Commonwealth, a State or a Territory; or

(C) a body corporate established for a public purpose by a law of the

Commonwealth, a State or Territory, other than an incorporated company or

association, provided that any such body which by 30 October 2012 had

registered as a group member with the plaintiff’s solicitor shall be a group

member; or

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(D) any judge, magistrate or other judicial officer of the Commonwealth, a State

or a Territory; or

(E) any other officer of the Commonwealth, a State or a Territory, in his or her

capacity as an officer.

5. As at the date of commencement of this proceeding there are, as against each defendant,

seven or more persons who have claims against the defendant.

SECTION B – SPI – STATUTORY DUTY AND NEGLIGENCE

6. The first defendant (“SPI”):

(a) is and at all times from around May 1994 was a corporation registered for the purposes

of the Corporations Law, and since 2001 the Corporations Act 2001 (Cth), and capable

of being sued;

(aa) was:

(i) incorporated in or around May 1994 with the corporate name “DB One Limited”;

(ii) from in or around August 1994 until in or around March 2000, known as “Eastern

Energy Limited”;

(iii) from in or around March 2000, known as “TXU Electricity Limited” and in or

around August 2004 known as “TXU Electricity Pty Limited”; and

(iv) from in or around August 2004 until after 7 February 2009 known as “SPI

Electricity Pty Limited”;

(b) at all material times since 3 October 1994 has carried on business as a distributor of

electricity in the geographical area in northern and eastern Victoria depicted on a map a

copy of which is available for inspection at the offices of the solicitors for SPI (“the

licence area”) pursuant to a licence as varied from time to time (“the distribution

business”);

(c) at all material times in carrying on the electricity distribution business was:

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(i) an electricity supplier; and

(ii) a network operator;

within the meaning of section 3 of the Electrical Safety Act 1998 (Victoria) (“the ES

Act”);

(d) is and was the successor to the electricity distribution business carried on:

(i) by State Electricity Commission of Victoria (“SECV”) until December 1993;

Particulars

Electricity Industry Act 1993 (Vic) ss 62, 64 (“EI Act”); Electricity Industry (Residual Provisions) Act 1993 (Vic) ss.63A, 63C, 64 (“EIRP Act”) and the allocation statement titled “Electricity Industry Act 1993 – Allocation Statement – Section 62(1)” dated 23 December 1993 (“1993 Allocation Statement”). A copy of the 1993 Allocation Statement may be inspected by appointment at the offices of the plaintiffs’ solicitors.

(ii) Electricity Services Victoria (“ES-Victoria”) from December 1993 until September

1994;

Particulars

EIRP Act Part 10 and the allocation statement titled “Electricity Industry Act 1993 – Section 117 Allocation Statement” dated 29 September 1994 (“1994 Allocation Statement”). A copy of the 1994 Allocation Statement may be inspected by appointment at the offices of the plaintiffs’ solicitors.

and acquired all liabilities, duties and obligations, whether actual, contingent or

prospective, of SECV and ES-Victoria in accordance with the EI Act, the EIRP Act, and

the 1993 Allocation Statement and 1994 Allocation Statement respectively (the said Acts

and statements being together the “Privatisation Legislative Scheme”);

(e) at all material times since about 28 October 2004 was, as network operator, required to

comply with an Electrical Safety Management Scheme (“ESMS”) approved by Energy

Safe Victoria (“ESV”) in circumstances where:

(i) Division 2 of Part 10 of the ES Act and the Electricity Safety (Management)

Regulations 1999 (Vic) (“the ESMS Regulations”) entitled ESV to permit SPI to

submit to ESV, or its predecessor the Office of Chief Electrical Inspector (“OCEI”),

for acceptance of the Governor in Council a scheme in respect of the design,

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construction, operation and maintenance of SPI’s distribution network, known as

an Electrical Safety Management Scheme, being the ESMS: ES Act s.107(1)(b);

(ii) the ESV, or its predecessor the OCEI respectively, was required to recommend to

the Governor in Council that the ESMS be accepted if ESV was satisfied that,

inter alia, the scheme was appropriate for the distribution network and complied

with section 107(2) and the ESMS Regulations and if it was satisfied that the level

of safety to be provided by the ESMS minimized as far as practicable the hazards

and risks to any person and the property of any person arising from the

distribution network: ES Act s.111;

(iii) in or about November 2001 SPI, then known as TXU Networks Pty Ltd, submitted

the ESMS to the OCEI;

(iv) on or about 26 October 2004 the Governor in Council, on the recommendation of

the OCEI, accepted the ESMS and the approval was recorded in the Government

Gazette on 28 October 2004; and

(v) the ESMS was in operation from its approval and remained in operation on 7

February 2009;

(f) at all material times since about 28 October 2004, was required by its ESMS to

undertake programs of cyclic inspection to identify required maintenance works

(“scheduled inspections”) (ESMS cl.2.10.5.1).

7. In the course of and for the purpose of the electricity distribution business, SPI at all material

times:

(a) owned and had the use and management of, the poles, pole fittings, conductors, fuses,

circuit reclosers, transformers and like installations (together and severally

“installations”) comprising the distribution network;

(aa) owned and had the use and management of a single-wire earth return electricity supply

line forming part of the distribution network and known as the “Pentadeen Spur SWER

line” located at Kilmore East in the State of Victoria (“the SWER line”), which SWER line

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included the conductor strung between Pole 38 and 39 on the SWER line (“the Valley

Span”); and

(b) transmitted electricity along the SWER line for the purposes of supply to consumers.

SPI duties of care

SPI Statutory Duty

8. At all material times section 75 of the ES Act required SPI as a network operator to take

reasonable care to ensure that all parts of its network were safe and were operated safely

(“the SPI Statutory Duty”).

9. The SPI Statutory Duty imposed on SPI obligations for the protection of a particular class of

persons, being persons who from time to time, by themselves or their property:

(a) approached or came into contact with any part of SPI’s network; or

(b) might be injured or damaged by a discharge of electricity from any part of the said

network or by the consequences of any such discharge, including but not limited to fire.

Particulars

The object of protecting the said class is to be inferred from the ES Act as a matter of the proper construction of the Act.

10. At all material times the plaintiff and each of the group members (together and severally

“claimants”) were:

(a) persons within the class described in the preceding paragraph; or

(b) estates or dependents of persons within the class described in the preceding paragraph;

or

(c) persons likely to suffer mental injury, psychiatric injury or nervous shock as a result of

the death of or injury to persons within the class described in the preceding paragraph.

Particulars

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The plaintiff, her husband and her two adult children, including Sam Matthews, resided in an area susceptible to bushfire ignited by a discharge of electricity from the SPI network, being Mullers Road at St Andrews.

11. In the premises, at all material times SPI owed the SPI Statutory Duty to the claimants.

SPI General duty

12. At all material times from in or around October 1994 SPI:

(a) was the owner and/or operator of the SWER line;

(b) had the ultimate responsibility for:

(i) all activities associated with planning, design, construction and maintenance of

electrical network assets that it owned and/or operated;

(ii) the installation, in or after about October 1994, or retention in service of any

assets forming part of the SWER line that were faulty, defective, incorrectly

assembled or had deteriorated in condition;

Particulars

Page 8 of the ESMS.

(c) had the right, to the exclusion of other private persons to:

(i) construct, repair, modify, inspect and operate the SWER line; or

(ii) give directions as to its construction, repair, modification, inspection or operation;

(d) exercised the right referred to in (c) above; and

(e) in the premises, had practical control over the SWER line.

13. At all material times from in or around October 1994:

(a) SPI used the SWER line to transmit electricity at high voltage;

(b) the transmission of electricity along the SWER line created a risk of unintended

discharges of electricity from the SWER line;

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(c) unintended discharges of electricity from the SWER line were capable of causing death

or serious injury to persons, and damage to or loss of property, by:

(i) electric shock;

(ii) burning by electric current; further or alternatively

(iii) burning by fire ignited by the discharge of electricity;

(eb) in the premises set out in subparagraphs (c) and (d), the risks referred to in (b) and (c)

were:

(i) not insignificant as to their likelihood of occurring; and

(ii) not insignificant as to the potential consequences if they did occur;

(d) in the premises set out in sub-paragraphs (a) to (eb) inclusive, the transmission by SPI

of electricity along the SWER line was a dangerous activity;

(e) SPI knew or, as the network operator of the SWER line, ought reasonably to have

known of the matters referred to in sub-paragraphs (a) to (d) above.

14. At all material times it was reasonably foreseeable to SPI that:

(a) a break or defect in, or damage to the conductor on the SWER line could cause or allow

an unintended discharge of electricity from the SWER line;

(b) a discharge of electricity from the SWER line could cause a fire in the vicinity of the point

of discharge;

(c) such fire could spread over a wide geographic area;

(d) such fire could cause death or injury to persons and loss of or damage to property within

the area over which such fire spread (“fire area”), and consequential losses including

economic losses;

(e) such fire could cause damage to property and consequential losses including economic

losses within areas:

(i) affected by the physical consequences of fire, such as smoke or debris; or

(ii) the subject of emergency activity to prevent the spread of fire, such as the

clearing of firebreaks;

(“affected areas”);

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(f) such fire or its consequences could:

(i) disrupt or impair the income-earning activities of persons residing or carrying on

business in the fire area or affected areas; or

(ii) impede the use or amenity of property located in the fire area or affected areas; or

(iii) reduce the value of property or businesses located in the fire area or affected

areas;

and thereby cause economic loss to those persons, or the owners of those properties or

businesses;

(g) the risks referred to in sub-paragraphs (b) to (f) above were greater during periods of

high or extreme bushfire risk.

15. At all material times members of the public who:

(a) were from time to time; or

(b) owned or had an interest in property; or

(c) carried on business;

in the fire area or affected areas:

(i) had no ability to prevent or minimize the risk of such discharge occurring; and

(ii) were vulnerable to the impact or effects of such fire; and consequently

(iii) were dependent, for the protection of their persons, property and interests, upon

SPI ensuring that the SWER line was safe and operated safely in the operating

conditions applying to it from time to time.

16. At all material times the claimants were:

(a) persons within the class described in the preceding paragraph; or

(b) dependents of persons within the class described in the preceding paragraph; or

(c) persons likely to suffer mental injury, psychiatric injury or nervous shock as a result of

the death of or injury to persons within the class described in the preceding paragraph.

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17. In the premises set out in paragraphs 8 to 16 inclusive, alternatively paragraph 8 and

paragraphs 12 to 16 inclusive, at all material times from in or around October 1994 SPI owed

to the claimants a duty:

(a) to take reasonable care by its officers, servants and agents; and

(b) as a non-delegable duty – to ensure that reasonable care was taken by any contractors

engaged by it;

to ensure that all parts of the SWER line were safe and operated safely in the operating

conditions that were foreseeable for the SWER line (“the SPI General Duties”).

Kilmore bushfire

18. At approximately 11:45am (Eastern summer time) on 7 February 2009, the conductor on the

Valley Span failed near the western end of the helical fitting on pole 39 and ignited a fire,

which fire became the Kilmore bushfire.

Particulars

(i) the conductor when it failed recoiled toward Pole 38, coming to rest along the ground but also draping across the southern stay assembly supporting Pole 38 (“stay assembly”);

(ii) the conductor discharged electricity into the stay assembly and also to ground, in particular the ground near beneath the anchor rod forming part of the Pole 38 stay assembly;

(iii) the oil-operated automatic circuit recloser (“OACR”) covering the Pentadeen Spur “tripped” to break the circuit, then commenced its reclose program under which it reclosed and resumed current, then re-tripped, on three further occasions according to its operating settings;

(iv) discharges of electricity:

a. from the conductor to ground very near the Pole 38 stay assembly ignited dry grass near the discharge point; alternatively

b. from the conductor to the stay assembly caused the emission of heat or sparks from the conductor or the stay assembly ,which ignited flammable material near the point of emission; and

(v) the ignition led to a grass fire which spread south-eastward from the area around the southern stay assembly supporting Pole 38, and thereafter across the Kilmore bushfire area.

19. The Kilmore bushfire was caused by breaches by SPI of:

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(a) the SPI Statutory Duty; further or alternatively

(b) the SPI General Duties.

Particulars of Breach

Asset management system failures

(ia) failing to conduct adequate due diligence to ensure that the SWER installations were free from any fault, not defective, not deteriorated in condition and not incorrectly assembled either at the time it acquired the electricity distribution business or at any time thereafter;

(i) failing to have or implement adequate systems for determining risk factors affecting the likelihood of failures of SWER installations and in particular conductors;

(ii) failing to keep adequate records to identify SWER installations operating in conditions presenting increased risk of damage and failure;

(iia) failing to consider and take into account, adequately or at all, the condition of the Valley Span, by failing to consider and take into account the history of maintenance and inspection of the SWER installations on the Valley Span for the purpose of informing the content and frequency of inspections and maintenance of the Valley Span;

(iib) failing to keep adequate and accessible records so that it could consider and take into account the condition, further or alternatively the history of maintenance and inspection, of the Valley Span in setting the content and frequency of inspections and maintenance of the Valley Span;

(iii) failing to take reasonable steps to identify the Valley Span as a span subject to increased risk of installation damage and failure, being risks arising from inter alia:

a. its length of approximately 1043 metres, being one of the 16 longest spans on the SPI SWER network;

b. its time in service, being approximately 43 years;

c. its anticipated service life of 40 to 60 years;

d. its unknown tension;

e. its location, being strung between two hills or ridges;

f. its location in terrain defined by ENA C(b)1-2006 as Type II terrain;

g. its likely exposure to high wind;

h. its likely exposure to high-frequency low-amplitude vibration induced by wind, associated with its location;

i. its small diameter, being the smallest diameter conductor available;

j. the absence of vibration dampers;

(iiia) failing to provide adequate instructions, further or alternatively adequate information, to its contractors and agents:

a. regarding the existence of, or the risk of existence of, any faulty, defective, deteriorated in condition or incorrectly assembled assets on or forming part of the Valley Span; or

b. for the purpose of identifying any faulty, defective, deteriorated in condition or incorrectly assembled assets on or forming part of the Valley Span;

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either at the time it acquired the electricity distribution business or at all;

(iv) failing to have any or any adequate program for scheduling replacement of SWER conductors on a precautionary (“scheduled discard”) basis according to an adequate assessment of the reliability of the conductor having regard to risk factors affecting the conductor;

(v) having or purporting to have a system of replacing conductors according to inspections of their condition during scheduled inspections, in circumstances where the content and frequency of scheduled inspections was inadequate, as referred to in particulars (vii) to (xix) below;

(vi) failing to replace the Valley Span conductor prior to February 2009;

Asset inspection system failures

(vii) failing to have adequate systems for setting the content or frequency of scheduled inspections of the Valley Span, and in particular failing to set the content or frequency of inspections by reference to:

(a) adequate records identifying risk factors affecting the Valley Span; or

(b) the fact that the Valley Span was located in a High Bushfire Risk Area (as designated pursuant to section 80 of the ES Act);

(viii) setting the content and frequency of scheduled inspections of installations on the Valley Span by reference to failure modes of poles and not by reference to any or any adequate data regarding the failure modes of conductors located on spans like the Valley Span;

(ix) failing to conduct adequate inspections of the Valley Span, and in particular failing to inspect the conductor using inspection techniques suitable for the detection of damage to SWER conductors such as (without limitation) inspection by trained line repair personnel carried out from an elevated work platform located close to the conductor (“line-height inspections”), or inspections using stick-mounted cameras;

(x) failing to schedule inspections at appropriate intervals;

(xi) failing to have an adequate system for recording observations made by personnel conducting scheduled inspections of SWER installations (“inspectors”) regarding the condition of installations, or making such records available to inspectors for comparison with observations at later inspections;

(xii) failing to ensure, or take reasonable steps to ensure, that training provided to personnel conducting scheduled inspections of SWER installations (“inspectors”):

a. complied with applicable “competencies” recognised by the Australian Qualifications & Training Framework; and

b. was structured, delivered, documented, assessed and, where test results or work performance were unsatisfactory, remediated in accordance with reasonable training industry practice;

(xiii) failing to take reasonable steps to ensure that inspectors received adequate training in the identification and correct fitting of, or risk factors affecting, or damage to, installations on the SWER network;

(xiv) failing to take reasonable steps to ensure inspectors did not receive training instruction to the effect that a “quick scan” of a SWER conductor from ground level was a sufficient inspection, or if not sufficient was nevertheless the best inspection that was required of them;

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(xv) failing to take reasonable steps to ensure that inspectors, following training, were competent in the identification and correct fitting of, or risk factors affecting, or damage to, installations on the SWER network;

(xvi) failing to take reasonable steps to ensure that inspectors trained as referred to in particulars (xiii) and (xiv) above received appropriate corrective training before being permitted to carry out unsupervised inspections;

(xvii) failing to take reasonable steps to ensure that inspectors identified by either SPI or UAM or their agents as having failed an audit, completed appropriate corrective training and demonstrated appropriate competency before being permitted to resume unsupervised inspections;

(xviii) failing to take reasonable steps to ensure that the inspection manual provided to inspectors was at all times reasonably suitable as a reference guide;

(xix) failing to require scheduled inspections to be carried out by two-person inspection teams;

(xx) failing, by its servants and agents, to exercise due skill, care and diligence in inspecting the Valley Span and in particular failing to do so:

a. when undertaking a scheduled inspection of the Valley Span in or about February 2008 (“2008 inspection”);

b. by detecting or reporting, at the 2008 inspection:

(a) the incorrect configuration of the helical wrap in the thimble;

(b) a fracture (break) of at least one strand of the conductor, near the western end of the helical wrap on Pole 39;

(c) major splitting at the tops of Poles 38 and 39, requiring further investigation into condition of the span.

(xxi) alternatively to (xviii), failing to take reasonable steps to ensure its contractors exercised due skill, care and diligence in carrying out the 2008 inspection.

Engineering failures

(xviii-a) failing, following its acquisition of the Valley Span in or around October 1994, to correctly construct, configure or install the Valley Span SWER installations, alternatively conducting repairs or maintenance on the Valley Span, so as to create an incorrectly configured termination assembly and in particular an assembly in which the helical wrap was not held within the thimble groove but rather had slipped between the outside edge of the thimble and the inside edge of the clevis;

(xxii) failing to fit vibration dampers to the Valley Span;

(xxiii) having or purporting to have, and observing a policy of not installing vibration dampers on existing spans;

(xxiv) failing to take reasonable steps to ensure the Valley Span was tensioned in accordance with ENA guidelines to reduce the risk of damage from vibration and metal fatigue;

(xxv) failing to install adequate circuit-breaking devices on the Valley Span;

(xxvi) failing to set the OACR to minimise the duration of electricity flow following a fault detection;

(xxvii) failing to “suppress” the reclose function on the OACR at the commencement of the summer season, or at any time prior to 7 February 2009.

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19A. The Kilmore bushfire was a natural and foreseeable consequence of the breaches of duty

alleged in the preceding paragraph.

SECTION C – SPI – PRIVATE NUISANCE

20. Further to paragraph 4 above, the plaintiff brings this proceeding as subgroup representative

of those group members (“subgroup members”) who suffered injury, loss or damage caused

by the Kilmore bushfire’s interference in their use or enjoyment of interests held by them in

land.

21. At all material times each of:

(a) the risks referred to in paragraphs 13 and 14 above; and

(b) the risk that a bushfire ignited by a discharge of electricity from the SWER line would

unreasonably interfere with the use or enjoyment of interests in land:

(i) across which the fire passed; or

(ii) affected by the physical consequences of fire, such as smoke; or

(iii) the subject of emergency activity to prevent the spread of fire, including but not

limited to, the clearing of firebreaks;

were reasonably foreseeable to SPI.

22. By transmitting electricity on the SWER line at a time, being 7 February 2009, when the

SWER line was not safe or not operated safely SPI:

(a) caused or allowed an unplanned discharge of electricity to occur; and thereby

(b) brought onto land under the Pole 38 stay a fire, which became the Kilmore bushfire.

Particulars

The SWER line was not safe, and not being operated safely, by reason of the matters set out in the particulars under paragraph 19 above.

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23. The Kilmore bushfire unreasonably interfered in the use or enjoyment by the plaintiff and

subgroup members of interests which they held in land.

Particulars

The Kilmore bushfire burned over and destroyed all improvements, fixtures and chattels on the plaintiff’s land. Particulars of the plaintiff’s losses are set out in paragraph 25 below.

Particulars of interference suffered by subgroup members will be provided following the trial of common questions.

24. In the premises, the plaintiff and the subgroup members suffered nuisance created by SPI.

SECTION C1 – pre-1994 CAUSES – SPI DERIVATIVE LIABILITY

24A. Further and in the alternative to paragraphs 19 to 24 above, by reason of the matters set out in

paragraph 6(d) above (regarding SPI’s acquisition of liabilities of SECV and ES-Victoria), SPI

is liable for the claimants’ loss and damage resulting from the breaches of duty set out in

paragraphs 24B to 24P below.

Pre-December 1993 – SECV

24B. At all material times prior to about December 1993 SECV:

(a) was a body corporate with perpetual succession and capable in law of suing and being

sued;

(b) carried on a business of, inter alia, erecting and constructing electric lines, cables and

applications used in connection with the distribution, use and supply of electricity

throughout Victoria (SECV business).

Particulars

Sections 3 and 4 of the State Electricity Commission Act 1958 (Vic) (SECV Act).

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24C. In the course and for the purpose of the SECV business, SECV constructed, owned, further or

alternatively had the use and management of the installations comprising the SWER line,

including the Valley Span.

Particulars

Sections 3 and 21(1)(a) and (e) of the SECV Act. Further particulars may be provided following completion of discovery.

December 1993 to September 1994 – ES-Victoria

24D. Further and in the alternative to paragraphs 19 to 24C above, at all material times between

about December 1993 and about September 1994 ES-Victoria:

(a) was a body corporate with perpetual succession and capable in law of suing and being

sued;

(b) carried on the functions of, inter alia:

(i) distributing and supplying electricity; and

(ii) providing services including management services, in connection with the

distribution and supply of electricity in Victoria;

(“ES-Victoria business”).

Particulars

Section 23 of the EI Act.

24E. In the course and for the purpose of the ES-Victoria business, ES-Victoria constructed, owned,

further or alternatively had the use and management of, the installations comprising the

SWER line, including the Valley Span.

Particulars

Section 23 EI Act. Further particulars may be provided following completion of discovery.

SECV and ES-Victoria duties of care

21

24F. At all material times:

(a) between commissioning of the SWER line in about 1966 and about December 1993 –

SECV; and

(b) between about December 1993 and about September 1994 – ES-Victoria;

respectively:

(i) was the owner, further or alternatively the operator of the SWER line;

(ii) had the ultimate responsibility for:

A. the planning, design, construction and maintenance of the SWER line and

in particular the Valley Span;

B. the installation or retention in service of any assets forming part of the

SWER line that were faulty, defective, incorrectly assembled or had

deteriorated in condition;

Particulars

Sections 3, 20, 21 and 22 of the SECV Act (SECV); sections 21, 23, 25 & 47 of the EI Act (ES-Victoria).

(iii) had the right, to the exclusion of other private persons, to:

A. construct, repair, modify, inspect and operate the SWER line; or

B. give directions as to the construction, repair, modification, inspection or

operation of the SWER line;

(iv) exercised the rights referred to in (c) above; and

(v) in the premises, had practical control over the SWER line.

24G. At all material times during the periods referred to in paragraph 24F:

(a) SECV and ES-Victoria respectively used the SWER line to transmit electricity at high

voltage;

(b) the transmission of electricity along the SWER line created a risk of unintended

discharges of electricity from the SWER line;

22

(c) unintended discharges of electricity from the SWER line were capable of causing death

or serious injury to persons, and damage to or loss of property, by:

(i) electric shock;

(ii) burning by electric current; further or alternatively

(iii) burning by fire ignited by the discharge of electricity;

(ca) in the premises set out in subparagraph (c), the risks referred to in (b) and (c) were:

(iv) not insignificant as to their likelihood of occurring; and

(v) not insignificant as to the potential consequences if they did occur;

(d) in the premises set out in sub-paragraphs (a) to (c) inclusive, the transmission by SECV

or ES-Victoria respectively of electricity along the SWER line was a dangerous activity;

(e) SECV and ES-Victoria respectively knew or, as the network operator of the SWER line,

ought reasonably to have known of the matters referred to in sub-paragraphs (a) to (d)

above;

(f) it was reasonably foreseeable to SECV and ES-Victoria respectively that:

A. a break or defect in, or damage to the conductor on the SWER line could cause or

allow an unintended discharge of electricity from the SWER line;

B. a discharge of electricity from the SWER line could cause a fire in the vicinity of

the point of discharge;

C. such fire could spread over a wide geographic area;

D. such fire could cause death or injury to persons and loss of or damage to property

within the fire area (as defined in paragraph 14 above) and consequential losses

including economic losses;

E. such fire could cause damage to property and consequential losses including

economic losses within affected areas (as defined in paragraph 14 above);

F. such fire or its consequences could:

i. disrupt or impair the income-earning activities of persons residing or

carrying on business in the fire area or affected areas; or

ii. impede the use or amenity of property located in the fire area or affected

areas; or

23

iii. reduce the value of property or businesses located in the fire area or

affected areas;

and thereby cause economic loss to those persons, or the owners of those

properties or businesses;

G. the risks referred to in sub-paragraphs B to F above were greater during periods

of high or extreme bushfire risk; and

H. a break or defect in, or damage to the conductor on a span on the SWER line, of

the kinds referred to in paragraph A above, could be a long-term consequence

occurring many years after the installation of an inappropriate termination

assembly, or the incorrect configuration of a termination assembly, on a pole on

the span.

24H. During the periods referred to in paragraph 24F SECV and ES-Victoria respectively knew or

ought to have known, as was the case, that during the service life of the SWER line members

of the public:

(a) were or were likely to be; or

(b) owned or had an interest in property, or were likely to do so; and

(c) carried on business, or were likely to do so;

in the fire area or affected areas.

[There is no paragraph 24I]

24J. Further, at all material times during the periods referred to in paragraph 24F SECV and ES-

Victoria respectively knew or ought to have known, as was the case, that members of the

public described in the preceding paragraph:

(a) had, or were likely to have, no ability to prevent or minimize the risk of electricity

discharges of the kind referred to in paragraph 24G;

(b) were or were likely to be vulnerable to the impact or effects of fire occurring as

described in paragraph 24G; and consequently

24

(c) were or were likely to be dependent, for the protection of their persons, property and

interests, upon SECV and ES-Victoria respectively ensuring that the SWER line was

designed and constructed safely for operation in the operating conditions applying to it

from time to time.

24K. At all material times the claimants and each of them was a person within the class of persons

described in paragraph 24J.

24L. In the premises set out:

(a) in paragraphs 24B and 24C, and 24F to 24K inclusive in respect of SECV; and

(b) in paragraphs 24D to 24K inclusive in respect of ES-Victoria;

SECV and ES-Victoria respectively during the periods referred to in paragraph 24E owed to

the class of persons described in paragraph 24J, including the claimants, a duty:

(i) to take reasonable care by their officers, servants and agents; and

(ii) to ensure that reasonable care was taken by any contractors engaged by them;

to ensure that all parts of the SWER line were designed and constructed to operate safely,

and in fact operated safely, in the operating conditions applying to the line from time to time

(“the SECV duty”, which reference incorporates the duty as owed by ES-Victoria).

Breach of SECV duty by SECV or ES-Victoria

24M. In the alternative to paragraphs 19 to 24 above, the Kilmore fire was caused by breaches by:

(a) SECV, prior to about December 1993; alternatively

(b) ES-Victoria, between about December 1993 and about September 1994;

of the SECV duty.

Particulars of Breach

The conductor as it approached pole 39 was gripped by a helical “wrap” (also called a “pre-form” or “dead-end”) which was in turn held to the pole by a termination assembly. The termination assembly included a “clevis and thimble”

25

structure. The clevis was a cast U-shaped bracket with a clevis bolt passing between its “arms”. Around the bolt was a U-shaped, grooved thimble. The helical wrap was supposed to sit in the thimble groove, so that vibration or other movement in the conductor would transfer to the helical wrap and via the wrap to the thimble, which was able to swivel on the clevis bolt and reduce the risk of fretting and fatigue damage to the wires comprising either the conductor or the helical wrap.

As a result of failure by SECV or ES-Victoria to exercise reasonable care in:

i. the initial construction of the Valley Span, with the result that the helical wrap was not seated within the thimble groove; alternatively

ii. the conduct of repairs or maintenance on the span, with the result that the helical wrap was not re-seated within, or alternatively slipped out of, the thimble groove; alternatively

iii. appropriately tensioning the conductor, with the result that wind effects on the conductor were able to produce excessive movement in it such that the helical wrap was agitated out of the thimble groove;

the helical wrap, by a date prior to 2008 which the plaintiffs are not yet able to identify with precision, was not seated within the thimble groove but instead had jammed between the outside edge of the thimble and the inside edge of the clevis arm. The dislocation of the helical wrap reduced the capacity of the thimble to rotate around the clevis bolt, with the result that mechanical stresses produced by vibration or other movement in the conductor concentrated at other points where the conductor connected to other fittings, and in particular the point where it entered the in-span (western) end of the helical wrap.

Such concentration of mechanical forces was likely to and did increase the fretting and fatigue of the conductor strands, with the result that the strands progressively weakened and fractured. Immediately prior to the ignition of the Kilmore fire on 7 February 2009 there was one strand left intact to bear the whole weight of the conductor across the Valley Span. That remaining strand failed under the load with the result that the conductor collapsed and recoiled toward Pole 38, and arced as described in the particulars to paragraph 18 above.

Further particulars will be provided following completion of discovery and receipt of experts’ reports.

24N. The breaches of the SECV duty referred to in paragraph 24M constituted acts done, or omitted

to be done:

(a) prior to about December 1993 by SECV or by an officer, employee or agent of SECV in

the performance of particular functions of SECV within the meaning of the 1993

Allocation Statement, being the construction or maintenance of electricity distribution

lines, before about December 1993; further or alternatively

(b) at any time prior to about September 1994 by SECV or ES-Victoria, and which arose

from the negligence or other actions or omissions of a person who was at the time an

officer, employee or agent of ES-Victoria or SECV and based in the geographic area

26

which by 7 February 2009 was serviced by SPI, within the meaning of the 1994

Allocation Statement.

24O. In the premises set out in paragraph 6(d) (regarding SPI’s acquisition of liabilities of SECV and

ES-Victoria) and 24N, SPI is liable for the claimants’ loss and damage resulting from the

breaches of duty alleged in paragraph 24M.

SECTION D – LOSS AND DAMAGE – CLAIMS AGAINST SPI

25. By reason of:

(a) the breaches by SPI of the SPI Statutory Duty;

(b) the breaches by SPI of the SPI General Duties; further or alternatively

(c) the nuisance committed by SPI; further or alternatively

(d) the breaches of duty by SECV, alternatively ES-Victoria, for which SPI is liable as

alleged in paragraphs 24A to 24O above;

the plaintiff, and each of the group members or subgroup members as the case may be,

suffered loss and damage of kinds referred to in paragraph 14 above.

Particulars of loss and damage

Property damage

The Kilmore bushfire destroyed the plaintiff’s residence at 55 Mullers Road, St. Andrews, together with the contents thereof.

Further, a renovated barn in which her son Sam resided with his sister was also destroyed as were other outbuildings on the property.

In addition to the destruction of buildings on the property, pasture, trees, gardens and machinery were also destroyed.

Personal injuries

The plaintiff is now aged 52 having been born on 7 December 1959.

The plaintiff’s 22 year old son Sam, who was born on 12 October 1986, died in the Kilmore bushfire.

At the time of Sam’s death, the plaintiff was at Inverloch with her husband. During the late afternoon of 7 February 2009 the plaintiff received a telephone call from Sam requesting that his parents return to the property as soon as possible because of the

27

bushfire situation. The plaintiff’s husband immediately left Inverloch to try to return to St Andrews. Sam then told the plaintiff that a tree outside their home had just exploded, he was surrounded by fire and couldn’t get through to the emergency help number “000”. The plaintiff could hear that Sam was panicking. Sam repeatedly asked the plaintiff for help on what to do. As the plaintiff was trying to advise and assist her son, she heard explosions, which she believed and believes were the windows of the house exploding due to the fire.

The plaintiff told Sam to hang up and she would call “000”. Sam did hang up. This was the last contact that the plaintiff had with her son. The plaintiff called “000” but could not get through to an operator. The plaintiff tried to call Sam back but could not get through. The plaintiff then left Inverloch to try to get back to St Andrews. She was stopped at a roadblock on the Heidelberg-Kinglake Road.

The plaintiff and her husband spent all night and the next day trying to learn the whereabouts of their son. Late on 8 February 2009 she was told that her son was dead. She had official confirmation that her son died in the bushfire when Sam’s remains were found at the property on 11 February 2009.

As a consequence of the circumstances surrounding the death of her son, the plaintiff has suffered severe psychiatric injury. The plaintiff has incurred medical and like expenses in relation to such injury.

As a consequence of the injury the plaintiff has been incapacitated for employment as a senior area coordinator for the Victorian Infant Hearing Program at the Royal Women’s Hospital. The plaintiff, prior to the Kilmore bushfire, was working in employment on a full time basis earning approximately $78,000 gross per annum.

Further particulars of the plaintiff’s claim for damages for property loss and personal injury will be provided prior to the trial of this proceeding.

[There are no paragraphs 26 and 27]

SECTION E – CLAIMS AGAINST UAM

28. Further and in the alternative to the claims against SPI set out above, by reason of Part IVAA

of the Wrongs Act 1958 (Victoria) the plaintiff on her own behalf and on behalf of the group

members adopts SPI’s claims against the second defendant (“UAM”) as follows.

UAM – common law duty to the claimants2

2 SP Ausnet Amended Defence and Counterclaim dated 3 December 2012 16 June 2011 (as further amended from time to time) (“SP Ausnet Defence pleading”) paragraphs 301ff.

28

29. UAM is and was at all material times a company incorporated pursuant to law and capable of

being sued.

30. Pursuant to a contract made between SPI and UAM on or about 1 April 2007 (“UAM

Contract”), UAM agreed to provide to SPI services in respect of asset inspection on the terms

and conditions set out therein.

Particulars

So far as the plaintiff is able to say prior to the completion of discovery, the UAM contract was in writing and comprised:

(A) an Instrument of Agreement located at the commencement of the document entitled “Contract Terms and Conditions” executed on 1 April 2007 by Nino Ficca for and on behalf of SPI and Richard Janssen for and on behalf of UAM (the Instrument of Agreement);

(B) the Special Conditions of Contract detailed in Schedule 1 to the Contract Terms and Conditions (the Special Conditions);

(C) the Contract Terms and Conditions following the Instrument of Agreement together with all Schedules, Appendices, incorporated documents and other documents where relevant including the Scope of Contract Works detailed in Schedule 2 to the Contract Terms and Condition (including other Schedules and Documents where relevant) and the Specifications referred to in Schedule 2 (the Terms and Conditions);

(D) any Works Order pursuant to which SPI engaged UAM to carry out discrete items of work (Works Order).

Each of the items set out in (A) to (C) above are in writing. A copy of each may be inspected at the offices of the plaintiff’s solicitors by appointment.

31. The asset inspection services included, inter alia:

(a) ground-level and aerial inspection and condition assessment of poles and all attached

hardware and conductors (asset inspection);

(b) maintenance works and activities required to address maintenance items identified by

asset inspection;

(c) the employment and training of persons to conduct asset inspection (asset inspectors);

(d) at least bi-monthly internal auditing of asset inspectors and at least annual independent

auditing of asset inspectors and internal auditors;

(e) monthly reporting to SPI in relation to asset inspection;

Particulars

UAM Contract Schedule 2.

29

32. The UAM Contract provided that UAM shall execute and complete the whole of the works

described in any Works Order in every respect to the satisfaction of SPI in accordance with

the Contract Documents being the Instrument of Agreement, the Special Conditions, the

Terms and Conditions and any Works Order: Instrument of Agreement, Clauses 1 and 2.

33. The UAM Contract contained the following terms in the Terms and Conditions:

(a) UAM shall comply with all applicable laws, by-laws, ordinances, regulations,

proclamations, orders and rules and with the lawful requirements of the relevant

authorities that may be in any way related to the Contract Works: Terms and Conditions,

Clause 2.7.2, 1.1.16;

(b) all workmanship shall be of the highest quality and standard and the Contract Works

shall be carried out competently, regularly, diligently, with due expedition, without delay

and in accordance with best industry practice and comply with all applicable Australian

Standards and/or other referenced codes, and the requirement of relevant Statutory

Authorities and the Law: Terms and Conditions, Clause 8.1, 1.1.16;

(c) UAM, in agreeing to perform the Contract Works, represents and warrants to SPI that it

has the necessary skills, resources and experience to successfully perform the Contract

Works in accordance with the requirements of the UAM Contract, and that it is

appropriately licensed or registered where this is required by law: Terms and Conditions,

Clause 8.2, 1.1.16.

34. The UAM Contract contained the following terms in the Special Conditions:

(a) UAM must ensure that it supplies and maintains a trained and competent workforce at

all times: Special Conditions, “Training”;

(b) all personnel employed by UAM to perform work must meet the minimum requirements

set out in the special conditions with regards to SPI minimum training and as reasonably

required by SPI: Special Conditions, “Training”;

30

(c) the training courses for asset inspectors listed in the Special Conditions of the UAM

contract are the minimum training requirements for asset inspectors and it was the

responsibility of UAM to ensure that all personnel engaged under the UAM contract had

completed the appropriate recognised training courses and were skilled and competent

to perform the requested tasks, such that UAM may need to supply additional training in

order to comply with all government guidelines and regulations for the tasks being

undertaken: Special Conditions, “Training”;

(d) all training unless otherwise agreed by SPI must be conducted by a Registered Training

Organisation: Special Conditions, “Training”;

(e) UAM in providing services under the UAM Contract, shall at all times carry out all

activities in accordance with and comply with, inter alia, SPI’s technical standards and

procedures and such other standards as SPI may from time to time require: Special

Conditions, “Standards of Quality and Guidelines”.

35. Schedule 2 to the Terms and Conditions contained the following terms of the UAM Contract

regarding the Scope of Works to be carried out by UAM under the UAM Contract:

(a) the core components of the UAM Contract include asset inspection services, aerial

inspection services, asset and aerial inspection coordination and defective private

electric line management: Schedule 2, “Introduction”;

(b) UAM is engaged to undertake a range of activities at each individual pole and/or site

throughout SPI’s distribution and sub-transmission network, including an initial

ground-level inspection of assets, followed by subsequent aerial inspections and

maintenance activities as required: Schedule 2, “Introduction”;

(c) the ground level activities that UAM was required to undertake included:

(i) pole inspection involving ground line condition inspection and treatment of wood,

concrete or steel poles in accordance with the Asset Inspection Manual 30-4111;

(ii) line hardware inspection involving condition assessment of all attached hardware

and conductors at each pole/site as per the Asset Inspection Manual 30-4111,

including defective cross-arms; defective insulators; high voltage fuses and surge

31

diverters; defects with substations and high voltage switchgear including low

platform clearance issues as per ESMS Management Plan 30-2671; defective

conductors, including LV servicing and conductor attachments/mid-span

splices/servicing points of attachment at customer installations; low conductors

and LV Servicing as per ESMS Management Plan 30-2654; and leaning poles and

towers as per ESMS Management Pan 30-2653: Schedule 2, “Ground Level

Activities”;

(d) all defects detected during ground level activities are to be reported with the appropriate

priority and Q4 Failure Codes/Required Information as outlined in SPI Distribution

Network Asset, Inspection Information, Appendix A: “Q4 Failure Code and Reporting

Guide for Asset Inspectors”: Schedule 2, “ Ground Level Activities”;

(e) failure to accurately identify any priority defect that is found to be either a contributing

factor, or sole cause, of a major incident (wildfire, fatality etc) would result in immediate

contract suspension and cessation of all works undertaken by UAM: Schedule 2,

“Ground Level Activities”;

(f) UAM must complete certain mandatory minor maintenance activities at the time of

inspection and should complete certain discretionary maintenance activities at the time

of inspection: Schedule 2, “Ground Level Activities”;

(g) the aerial inspection activities that UAM was required to undertake included:

(i) specialised close-up assessment of defective attachments reported by asset

inspection to more accurately ascertain the likelihood of failure and to determine

the correct priority: Schedule 2, “Aerial Activities”;

(ii) close-up examination of reported defective and/or deteriorated cross-arms from

an elevated work platform to ascertain severity and defect/likelihood of failure and

to assign correct priority: Schedule 2, “Aerial Activities”;

(h) UAM must complete certain minor maintenance activities at the time of assessing

reported defective attachments in the same zone: Schedule 2, “Aerial Activities”;

(i) UAM was required to undertake a ground level and aerial activities coordination function

to ensure all inspection targets are met and an even flow of work maintained between

32

asset inspectors and the SPI Electricity Maintenance Division: Schedule 2, “Ground

Level and Aerial Activities Coordination”;

(j) in undertaking ground level and aerial activities coordination, UAM is required to compile

an asset inspection schedule prior to the commencement of each inspection year;

maintain and update the schedule with relevant information; undertake exception

reporting to ensure that no inspections are scheduled beyond their due dates; ensure all

inspection targets are met, including the 3-week inspection package deadline and HBRA

Asset Inspection; undertake inspection data management between the Q4 Asset

Management Database and Portable Field Devices; verify completed inspection data

prior to upload into the Q4 Asset Management Database; prepare AM/FM maps for

individual Asset Inspection packages; and coordinate Aerial Inspection activities and

deadlines: Schedule 2, “Ground Level and Aerial Activities Coordination”;

(k) in undertaking asset inspection, UAM was required to capture all information

electronically via hand-held PDE (portable data entry) device and record all defects

identified using the appropriate Q4 “Failure Code” and Priority as set out in the “Q4

Failure Code and Reporting Guide for Asset Inspectors” (SPI Distribution Network

Asset, Inspection Information, Appendix A: “Q4 Failure Code and Reporting Guide for

Asset Inspectors”): Schedule 2, “Information and Data Recording”;

(l) UAM was required to undertake frequent audits of all field staff to ensure quality of

works/compliance with policies and procedures and adherence to HS&E policies and

work practices and the frequency of such audits would be a minimum of bi-monthly for

each asset inspector: Schedule 2, “Compliance Auditing”;

(m) in addition to its internal auditing, UAM must engage at its expense an independent

auditor at least once in any 12-month contract period to undertake audits on all UAM

asset inspectors and UAM internal auditors: Schedule 2, “Compliance Auditing”;

(n) UAM was required to submit to SPI a monthly report outlining the progress of various

inspection regimes, the number of completed units for the month, the results, trends and

progress of internal audits and other matters: Schedule 2, “Reporting”.

33

36. Pursuant to the UAM Contract, UAM agreed to indemnify and keep indemnified SPI and its

officers, employees and agents against all claims, demands, proceedings, liabilities, costs,

charges and expenses arising as a result of any act, neglect or default of UAM, its officers,

employees or agents related to its execution of the Contract Works.

Particulars

UAM Contract, Terms and Conditions clauses 5, 1.1.16.

37. It was an implied term of the UAM Contract that UAM would exercise reasonable care and skill

in the provision of services pursuant to the UAM Contract (the UAM implied term).

Particulars

The term was implied by law into the UAM Contract being a contract for the performance of professional services.

38. At all relevant times, UAM held itself out to SPI to be fully experienced, competent and

qualified with respect to carrying out the works required under the UAM Contract and, to

UAM’s knowledge, in reliance thereon, SPI agreed to engage UAM to carry out the works in

accordance with the UAM Contract.

Particulars

Recital B of the UAM Contract.

39. Throughout the term of the UAM Contract, UAM provided to SPI asset inspection services

under the UAM Contract throughout the distribution network including in respect of the

Pentadeen Spur and the Valley Span.

40. In the premises, throughout the term of the UAM Contract, UAM had, subject to the UAM

Contract, a responsibility for and some control over:

(a) asset inspection throughout the distribution network, including on the Pentadeen Spur

and the Valley Span;

34

(b) asset inspection training for asset inspectors who conducted asset inspection

throughout the distribution network, including on the Pentadeen Spur and the Valley

Span;

(c) the implementation and observance by asset inspectors of the asset inspection

requirements set out in the Asset Inspection Manual in conducting asset inspections


Span;

(d) the identification through asset inspection of defects, faults, deterioration in condition

and incorrect assembly of assets forming part of the distribution network including poles,

conductors and associated hardware on the Pentadeen Spur and the Valley Span;

(e) undertaking maintenance activities in response to defects, faults, deterioration in

condition and incorrect assembly identified through asset inspection of assets forming

part of the distribution network including poles, conductors and associated hardware on

the Pentadeen Spur and the Valley Span;

(f) reporting to SPI defects, faults, deterioration in condition and incorrect assembly of

assets forming part of the distribution network including poles, conductors and

associated hardware on the Pentadeen Spur and the Valley Span and notifying SPI of

necessary or desirable maintenance and replacement of such assets.

41. Throughout the term of the UAM Contract, UAM knew or ought to have known of the terms of

the UAM Contract set out above and the matters referred to in the previous paragraph.

42. Throughout the term of the UAM Contract, it was reasonably foreseeable to UAM that:

(a) any failure by an asset inspector to implement and observe the asset inspection

requirements set out in the Asset Inspection Manual in conducting asset inspections


Span;

35

(b) any failure by an asset inspector to identify defects, faults, deterioration in condition or

incorrect assembly of assets forming part of the distribution network including poles,

conditions and associated hardware on the Pentadeen Spur and the Valley Span;

(c) any failure by an asset inspector to undertake, or to procure the undertaking of,

maintenance activities in response to defects, faults, deterioration in condition or

incorrect assembly identified through asset inspection of assets forming part of the

distribution network including poles, conductors and associated hardware on the

Pentadeen Spur and the Valley Span;

(d) any failure by UAM to report to SPI defects, faults and deterioration in condition or

incorrect assembly of assets forming part of the distribution network including poles,

conductors and associated hardware on the Pentadeen Spur and the Valley Span or to

notify SPI of necessary or desirable maintenance or replacement of such assets;

could result in the unexpected failure before the next scheduled asset inspection of assets

forming part of the distribution network, including conductors and associated hardware on the

Pentadeen Spur and the Valley Span.

43. Further, throughout the term of the UAM Contract it was reasonably foreseeable to UAM that

the risks of the unexpected failures referred to in the previous paragraph would increase if the

asset inspectors who conducted asset inspections throughout the distribution network,

including on the Pentadeen Spur and the Valley Span, were not adequately trained in asset

inspection or failed to exercise due skill, care and diligence in conducting asset inspection.

44. Further, throughout the term of the UAM Contract, UAM knew or ought reasonably to have

known that:

(a) SPI used the Pentadeen Spur to distribute electricity;

(b) if a conductor broke on the Pentadeen Spur, unintended arcing or discharge of

electricity from the conductor may occur;

(c) arcing or discharge of electricity from a broken conductor on the Pentadeen Spur could

cause ignition of flammable material in the vicinity of the point of discharge;

36

(d) such ignition could result in a fire which might spread over a wide geographic area;

(e) such fire could cause death or injury to persons and loss of or damage to property within

the fire area and consequential losses including economic losses;

(f) such fire could cause damage to property within the affected area and consequential

losses including economic losses;

(g) such fire or its consequences could:


business in the fire area or affected areas;



areas;

and thereby cause economic loss to those persons or the owners of those properties or

businesses;

(collectively the matters referred to in sub-paragraphs (b)-(g) are referred to as the UAM

risks).

45. Throughout the term of the UAM Contract, the claimants:

(a) had no ability or no practical or effective ability, to prevent or minimise the UAM risks;

(b) were vulnerable to the impact of the said risks; and consequently

(c) were to a material degree dependent for the protection of their persons and property,

upon UAM exercising reasonable care in the discharge of its obligations under the UAM

Contract.

46. In the premises, throughout the term of the UAM Contract, UAM owed to each of the claimants

a duty:

(a) to take reasonable care, by its officers, servants and agents; and

(b) to ensure that reasonable care was taken by agents, contractors or other persons

engaged by it,

37

in the discharge of UAM’s obligations under the UAM Contract to ensure that conductors and

associated hardware on the Pentadeen Spur were adequately inspected, and that defects,

faults, deterioration in condition or incorrect assembly were adequately identified, reported to

SPI and addressed by appropriate maintenance activities (the UAM Duty).

47. The UAM Duty required UAM to:

(a) by its officers, servants or agents, conduct asset inspections on the Pentadeen Spur

with due care, skill and diligence;

(b) by its officers, servants or agents, conduct with due care, skill and diligence asset

inspection training for asset inspectors who conducted asset inspections on the

Pentadeen Spur;

(c) exercise due care, skill and diligence to implement and observe the asset inspection

requirements set out in the Asset Inspection Manual in conducting asset inspections on

the Pentadeen Spur;

(d) take reasonable steps to ensure that asset inspectors who conducted asset inspections

on the Pentadeen Spur had received adequate training in the identification of defects,

faults, deterioration in condition and incorrect assembly of assets forming part of the

Pentadeen Spur;

(e) take reasonable steps in conducting asset inspection to identify defects, faults,

deterioration in condition and incorrect assembly of assets forming part of the

Pentadeen Spur;

(f) take reasonable steps to report to SPI defects, faults, deterioration in condition and

incorrect assembly of assets forming part of the Pentadeen Spur and address them by

appropriate maintenance activities.

38

Breach of duty by UAM3

48. UAM failed, following the February 2008 asset inspection, or at any time prior to 7 February

2009, to identify, notify SPI of, or conduct maintenance necessary to rectify, any defect, fault,

deterioration in condition or incorrect assembly of the conductor or associated assets forming

part of the Valley Span.

49. UAM’s failure, following the February 2008 asset inspection, or at any time prior to 7 February

2009, to identify, notify SPI of, or conduct, or procure the conducting of, maintenance

necessary to rectify, any defect, fault, deterioration in condition or incorrect assembly of the

conductor or associated assets forming part of the Valley Span was due to the following

breaches of the UAM duty:

(a) failure by its officers, servants or agents, to conduct asset inspections on the Pentadeen

Spur with due care, skill and diligence;

(b) failure by its officers, servants or agents, to conduct with due care, skill and diligence

asset inspection training for asset inspectors who conducted asset inspections on the

Pentadeen Spur;

(c) failure to exercise due care, skill and diligence to implement and observe the asset

inspection requirements set out in the Asset Inspection Manual in conducting asset

inspections on the Pentadeen Spur;

(d) failure to take reasonable steps to ensure that asset inspectors who conducted asset

inspections on the Pentadeen Spur had received adequate training in the identification

of defects, faults, deterioration in condition and incorrect assembly of assets forming

part of the Pentadeen Spur;

(e) failure to take reasonable steps in conducting asset inspection to identify defects, faults,

deterioration in condition and incorrect assembly of assets forming part of the

Pentadeen Spur;

3 SP Ausnet Defence pleading paragraphs 320ff.

39

(f) failure to take reasonable steps to report to SPI defects, faults, deterioration in condition

and incorrect assembly of assets forming part of the Pentadeen Spur and/or ensure they

were addressed by appropriate maintenance activities.

UAM – causation4

50. Further and in the alternative to paragraphs 8 to 25 inclusive, in the premises set out in

paragraphs 29 to 49 the Kilmore fire was caused by the breaches by UAM of the UAM Duty

alleged above.

UAM – loss and damage5

51. By reason of the breaches by UAM of the UAM duty, the claimants and each of them suffered

loss and damage.

Particulars

The plaintiff refers to and repeats the particulars of loss and damage set out in paragraph 25 above.

52. The Kilmore fire was a natural and foreseeable consequence of the breaches by UAM of the

UAM Duty alleged above.

53. In the premises set out in the two preceding paragraphs, the claimants’ loss and damage was

caused by the breaches by UAM of the UAM duty.

4 SP Ausnet Defence pleading paragraphs 322ff. 5 SP Ausnet Defence pleading paragraphs 323ff.

40

Apportionability and apportionment – UAM

53A. Further to paragraphs 29 to 53 above:

(a) SPI at all material times had power under the UAM Contract to, inter alia:

(i) issue Works Orders and require the stipulated works to be completed to SPI’s

satisfaction: UAM Contract cl.2; UAM Schedule 1 “Tasking of Work”; UAM

Schedule 1 p.29 (of 54) “Standards of Quality and Guidelines”;

(ii) assess and apply demerit points to works undertaken by UAM under the UAM

Contract: UAM Schedule 2;

(iii) issue notices requiring rectification of defective works: UAM Contract cl.8.5.1,

8.6.3;

(iv) give directions as to the sequence of works activities: UAM Contract cl.9.3.7;

(v) vary Contract Works to be undertaken by UAM: UAM Contract cl.10.2;

(vi) audit UAM’s compliance with the requirements of the UAM Contract: UAM

Contract cl.16; UAM Schedule 1 “Contractor Obligations”; UAM Schedule 2 p.34

“Compliance Auditing”;

(vii) stipulate reasonable requirements as to training of personnel engaged by UAM to

perform work under the UAM Contract: UAM Schedule p.26 (of 54) “Training”;

(viii) direct that UAM equipment and vehicles used for work under the UAM Contract

bear SPI signage: UAM Schedule 1 p.28 “SPI Signage”;

(ix) access, and require UAM to have, modify or comply with, UAM’s quality

assurance plan: UAM Contract cl.8.4; UAM Schedule 6 cl.1;

(b) in the premises set out in “a” above, SPI at all material times:

(i) had the right to direct UAM; and

(ii) did direct UAM;

as to UAM’s performance of works in connection with each of the matters set out in

paragraphs 40(a) to (f) inclusive above;

Particulars

So far as the plaintiff is able to say prior to discovery, SPI from time to time:

41

a. received from UAM or its training provider details as to, and expressly or implicitly approved, the course content of asset inspection training to be provided to UAM employees or contractors (“UAM personnel”) proposed to be engaged in work under the UAM contract;

b. was asked by UAM to approve and did approve the UAM personnel to be engaged on work under the UAM Contract;

c. issued works orders for the undertaking of works, including asset inspections, by UAM pursuant to the UAM Contract;

d. audited UAM’s compliance with its obligations under the UAM Contract;

e. issued audit results and defects notices to UAM and required UAM to rectify works not completed to SPI’s satisfaction.

Further particulars may be provided following the completion of discovery.

(c) at all material times SPI relied on or adopted the works done by UAM under the UAM

Contract as scheduled inspections (as defined in paragraph 6(f) above) in discharge of

SPI’s obligations under its ESMS; and

(d) in the premises in “a” to “c” inclusive, UAM in discharging its responsibilities or

exercising its capacity of control over the matters set out in paragraphs 40(a) to (f)

above did so within its actual or ostensible authority as agent of SPI for the purposes of

the SPI Statutory Duty, further or alternatively the SPI General Duties; and

(e) in the premises, the conduct of UAM alleged above was conduct by it as agent for SPI

within the meaning of section 24AP(b) of the Wrongs Act; and

(f) in the premises in “e”, nothing in Part IVAA of the Wrongs Act affects SPI’s liability as

principal for the negligence of its agent UAM alleged above.

53B. Further and in the alternative to paragraph 53A, the liabilities of SPI arising from the breaches

of the SPI Statutory Duty alleged in paragraphs 8 to 25 above are:

(a) liabilities arising from the operation of the ES Act and to the extent the ES Act

imposes the SPI Statutory Duty on SPI as network operator, within the meaning of

section 24AP(e) of the Wrongs Act; and

(b) not affected by Part IVAA of the Wrongs Act.

53C. Further and in the alternative to paragraphs 53A and 53B:

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(a) in the premises set out in paragraph 17, the SPI General Duties were or included

duties owed by SPI to ensure that reasonable care was taken by its contractor UAM

in discharging the responsibilities or exercising the control referred to in paragraph

40;

(b) the failures to take reasonable care comprising UAM’s breaches of the UAM duty

constituted breaches by SPI of the SPI General Duties; and

(c) SPI is responsible, within the meaning of section 24AI(1) of the Wrongs Act, for the

claimants’ loss and damage resulting from the breaches of duty by UAM.

53D. In the premises set out in paragraph 53 and paragraph 53A, alternatively paragraph 53B,

alternatively 53C, so far as the claims of the claimants against UAM are claims for economic

loss or damage to property in an action for damages arising from a failure to take reasonable

care (“ELPD reasonable care claims”):

(a) SPI is liable for the economic loss or property damage; alternatively

(b) UAM is a person who with SPI, further or alternatively DSE Secretary and Parks

Victoria (as alleged below) is one of two or more persons whose acts or omissions

caused the claimants’ economic loss and property damage the subject of the ELPD

reasonable care claims within the meaning of Part IVAA of the Wrongs Act, and

accordingly liable in proportion to its responsibility; alternatively

(c) UAM is liable for the economic loss or property damage.

SECTION F – DSE SECRETARY – FUEL MANAGEMENT6

53E. Further and in the alternative to paragraphs 8 to 53D, by reason of Part IVAA of the Wrongs

Act the plaintiff adopts SPI’s claims against DSE Secretary as follows.


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54. At all relevant times the third defendant (“DSE Secretary”) was a body corporate capable of

being sued in its corporate name.

Particulars

(i) Under section 3 of the Forests Act 1958 (Vic) (the Forests Act), “Secretary” means the body corporate established by Part 2 of the Conservation, Forests and Lands Act 1987 (Vic) (the Conservation, Forests and Lands Act).

(ii) Under sub-section 6(1) of that Part, the person who is for the time being the Department Head (within the meaning of the Public Administration Act 2004 (Vic)) of the Department of Sustainability and Environment (DSE) and the successors in office of that person are a body corporate under the name “Secretary to the Department of Sustainability and Environment.”

(iii) Further, under sub-section 6(2) of that Part (inter alia), the Secretary may sue and be sued in its corporate name.

(iv) Under Schedule 1 of the Public Sector Reform (Miscellaneous Amendments) Act 1998 (Vic), in section 6 of the Conservation, Forests and Lands Act for “Department of Conservation and Natural Resources” (wherever occurring) was substituted “Department of Sustainability and Environment”.

DSE fuel management – statutory duties to the claimants7

55. At all relevant times, the DSE Secretary was statutorily required to carry out proper and

sufficient work for the prevention and suppression of fire in every State forest and national

park and on all protected public land (the First DSE Fire Duty).

Particulars

(i) Sub-section 62(2) of the Forests Act.

(ii) A statutory duty in substantially the same terms as the First DSE Fire Duty was initially imposed on the Forests Commission after the extensive and devastating wildfires in Victoria in 1939. The First DSE Fire Duty was subsequently assumed, by operation of the provision referred to in sub-paragraph (i) above, by the DSE Secretary.

(iii) Recognition of the statutory duty is referred to on p1-2 of the DSE’s Fire Management Manual (version 8.1) – Fire Suppression (the DSE Fire Management Manual) published by the DSE in 2006, a copy of which may be inspected at the offices of the plaintiff’s solicitors by appointment.


44

56. At all material times, the DSE Secretary was statutorily required to make, out of the moneys

available for the purpose, provision for plans, work and plant for the prevention and

suppression of fires within fire protected areas being State forests, national parks and

protected public land.

Particulars

Sub-section 20(b) of the Forests Act.

57. At all material times, a large proportion of the area south east of Kilmore East comprised State

forests, national parks and/or protected public land (the Forested Area) and townships and/or

communities and/or residential homes adjacent or proximate to the Forested Area (collectively

Communities).

Particulars

(i) The Forested Area included various State forests, including the Mount Disappointment State forest, the Toolangi State forest and the Mount Robertson State forest.

(ii) The Forested Area included the Kinglake National Park, comprising all those pieces or parcels of land containing 23 175 hectares, more or less, situate in the Parishes of Billian, Burgoyne, Clonbinane, Derril, Flowerdale, Kinglake, Linton, Queenstown, Tarrawarra North, Tourourrong, Wallan Wallan and Woodbourne, Counties of Anglesey, Bourke, Dalhousie and Evelyn, being the land delineated and coloured pink or coloured blue or coloured yellow in plans lodged in the Central Plan Office and numbered N.P. 8/9, N.P. 8A/3 and N.P. 8B/1 (the Kinglake National Park).

(iii) The Forested Area included the Yarra Ranges National Park comprising all those pieces or parcels of land containing 77 190 hectares, more or less, situate in the Parishes of Brimbonga, Bullung, Buxton, Coornburt, Glenwatts, Gracedale, Granton, Manango, Monda, Narbethong, Noojee, St. Clair, Steavenson, Taponga, Toorongo, Torbreck, Youarrabuck and Yuonga, Counties of Anglesey, Buln Buln, Evelyn, Tanjil and Wonnangatta being the land delineated and coloured pink or coloured blue excepting the roads shown as excluded in the plans lodged in the Central Plan Office and numbered N.P. 102A/2 and N.P. 102B/2 (the Yarra Ranges National Park).

(iv) The Forested Area included the Toorourrong Reservoir Park, Wandong Regional Park, Kinglake West Education Area and the Castella Education Area.

(v) The adjacent or proximate Communities as aforesaid included the townships of Clonbinane, Upper Plenty, Glenvale, Eden Park, Whittlesea, Humevale, Eagle Nest, Arthur’s Creek, Smiths Gully, Strathewen, St Andrews, St Andrews North, Hurstbridge, Kinglake West, Kinglake Central, Kinglake East, Kinglake, Pheasant Creek, Steels Creek, Dixon’s Creek, Toolangi, Castella, Healesville, Chum Creek, Flowerdale and Hazeldene.

45

58. At all material times, the Forested Area comprised State forests and national parks under sub-

section 62(2) of the Forests Act which were State forests and national parks to which the First

DSE Fire Duty applied.

Particulars

(i) The State forests within the Forested Area were State forests under the Forests Act, being either reserved forests under sub-section 42(1) of, and Schedule Two to, the Forests Act, and/or protected forests within the meaning of the Forests Act.

(ii) The Mount Disappointment State forest, the Toolangi State forest, and the Mount Robertson State forest are State forests as referred to in the preceding sub-paragraph hereof.

(iii) By section 3 of the Forests Act, a national park for the purposes of sub-section 62(2) of the Forests Act means land that is or is part of a park within the meaning of the National Parks Act 1975 (Vic) (the National Parks Act).

(iv) By section 3 and sub-section 17(1) of, and Part 10 of Schedule 2 to, the National Parks Act, the Kinglake National Park is a park under the National Parks Act.

(v) By section 3 and sub-section 17(1) of, and Part 39 of Schedule 2 to, the National Parks Act, the Yarra Ranges National Park is a park under the National Parks Act.

59. The First DSE Fire Duty imposed on the DSE Secretary a duty to carry out proper and

sufficient planned works within the Forested Area to reduce the fuel load within the Forested

Area by, among other things, undertaking planned burning (planned burning) so that if an

unplanned fire occurred within or entered the Forested Area:

(a) that fire would be less intense; and/or

(b) that fire would stop or spread at a slower rate; and/or

(c) that fire would be less likely to produce from within the Forested Area lit branches and

other debris which might be taken by wind into areas ahead of the front of the fire

thereby creating fresh or further fires (fire spotting); and/or

(d) fire suppression efforts by fire agencies would be assisted;

thus reducing the risk the unplanned fire would pose to life, property and the environment

(collectively the planned burning benefits).

Particulars

The obligation arising from the duty as aforesaid is inferred from a proper construction of sub-section 62(2) of the Forests Act.

46

60. The First DSE Fire Duty was owed by the DSE Secretary to the claimants.

Particulars

(i) The object of protecting the claimants is to be inferred from the proper construction of sub-section 62(2) of the Forests Act.

(ii) The plaintiff relies on the proper construction of the provision read in the context of the Act as a whole and the objectives discerned from the provisions thereof and the extrinsic material produced at the time of its enactment. Those extrinsic materials include the following.

(iii) The 1939 Report of the Royal Commission to Inquire into the Causes of and Measures Taken to Prevent the Bush Fires of January 1939, and to Protect Life and Property and The Measures to be taken to Prevent Bush Fires in Victoria and to Protect Life and Property in the Event of Future Bush Fires by L.E.B Stretton (the Stretton Report).

(iv) Chapter V of the Stretton Report is headed “The measures which are necessary or desirable to be taken by any and what corporations, persons or bodies to protect life and private and public property in the event of bush fires burning in Victoria.”

(v) Within Chapter V of the Stretton Report it is stated that “The greater part of what is to be discussed under the title to this chapter may be conveniently set forth in relation to the part which the Forests Commission ought to take in respect of the matters falling under this title….Control of all Forests. – The Forests Commission should be placed in complete control for fire prevention and suppression purposes, of all forests, except in those areas in respect of which it has been recommended that they should be exempted from control by any other department.”

(vi) The Stretton Report was the basis for the introduction of the Forests Act 1939 (Vic) to be read and construed as one with the Forests Act 1928 (Vic). Section 4 of the Forests Act 1939 (Vic) provided that “It shall be the duty of the Commission to carry out in every State forest proper and sufficient work for fire prevention and control.”

(vii) Section 4 as aforesaid was the predecessor provision to sub-section 62(2) of the Forests Act.

(viii) The Victorian Parliamentary debate of the Forests Bill 1939 discloses that the Bill was directed at the preservation of life and property including by means of fire prevention and control in State forests, consistent with the Stretton Report as aforesaid.

(ix) During the course of the 1939 debate of the Forests Bill 1939 it was observed that:” I [Member Everard] commend the Minister on his Bill, but I would direct attention to the fact that many national parks are a grave source of fire danger. There is a national park at Kinglake. It is under the control of a committee of management, which, however has no money to spend on clearing the scrub, and so reducing the danger of fire to the neighbouring settlers. Several fires have originated in that area, and have done damage to orchard country. The committees managing national parks should be provided with money to enable them to protect State assets, as well as settlers’ holdings, by taking adequate precautions against the outbreak of fire. As it is, the land owners are in fear and trembling as to whether there will be a conflagration in those parks which may spread to their own properties.”: p2,242 of Hansard, 23 November 1939.

47

61. Further, at all relevant times, the DSE Secretary was statutorily required to ensure that proper

and sufficient measures were taken to protect the national parks within the Forested Area (the

National Parks Section of the Forested Area) from injury by fire (the Second DSE Fire

Duty).

Particulars

(i) Sub-section 17(2)(b) of the National Parks Act.

(ii) By section 3 and Part 2 of the Conservation, Forests and Lands Act, the DSE Secretary is the relevant Secretary referred to in section 17(2)(b) of the National Parks Act.

(iii) The relevant national parks within the Forested Area were the Kinglake National Park and the Yarra Ranges National Park.

62. The Second DSE Fire Duty included an obligation to undertake planned burning to achieve the

planned burning benefits in the National Parks Section of the Forested Area.

Particulars

The obligation arising from the duty as aforesaid is inferred from a proper construction of sub-section 17(2)(b) of the National Parks Act.

63. The Second DSE Fire Duty was owed to the claimants.

Particulars

The object of protecting the class is to be inferred from a proper construction of sub-section 17(2)(b) of the National Parks Act.

DSE fuel management – common law duty to the claimants8

63A. At all relevant times, the DSE Secretary had a duty to carry out proper and sufficient work for

the prevention and suppression of fire in every State forest and national park and on all

protected public land (collectively, the Public Land Area)

Particulars

Sub-section 62(2) of the Forests Act.

64. Further, at all relevant times, the DSE Secretary was:

8 SP Ausnet Defence pleading, paragraphs 335A336ff.

48

(a) the relevant fire control authority for the Forested Area;

(b) statutorily authorised to assign a fire hazard rating of "low" or "high" to any area of land

within a fire protected area including the Forested Area.

Particulars

(i) The DSE Secretary was and is the fire control authority as prescribed by the ES Act.

(ii) By section 3 of the Forests Act, the State forests and national parks within the Forested Area were and are fire protected areas.

65. At all material times, the State forests, national parks and protected public land within the

Forested Area and any lands within 1.5 kilometres of the those forests, parks and land were

fire protected areas within the meaning of the Forests Act.

Particulars


66. At all material times, the DSE Secretary was an authorised officer within the meaning and for

the purposes of the Forests Act.

Particulars

Sub-sections 3(1) and 83(4) and Schedule 1 of the Conservation, Forests and Lands Act.

67. At all material times, if it deemed it necessary to do so for the prevention of fire, the DSE

Secretary was authorised and empowered to direct in writing any owner or occupier or person

or body of persons having control or management of any land within 1.5 kilometres of the

boundary of (inter alia) the Public Land Area a State forest, national park or protected public

land (including such forest, park or land within the Forested Area):

(a) to remove, destroy or abate in any manner directed a fire hazard on such land;

(b) where the DSE Secretary within (inter alia) the Public Land Area State forest, national

park or protected public land and adjoining any such land has carried out or is carrying

out any work for fire prevention or control, to carry out on such land adjoining and within

50 metres of the boundary of the Public Land Area State forest, national park or

protected public land similar work for fire prevention or control.

49

Particulars


67A. During the 10 years prior to 7 February 2009, there were successive codes of practice for fire

management on public land:

(a) the Code of Practice for Fire Management on Public Land, published by the Victorian

Government Department of Conservation and Natural Resources in 1995 (the 1995

Code of Practice); and

(b) the updated Code of Practice – For Fire Management on Public Land (Revision no. 1),

published by the Victorian Government Department of Sustainability and Environment in

January 2006 (the 2006 Code of Practice),

(collectively the DSE Codes of Practice).

Particulars

(i) The 1995 Code of Practice is an approved code of practice in accordance with section 47 of the Conservation, Forests and Lands Act.

(ii) The 1995 Code of Practice in section 4 defines “Departmental” by reference to the Department of Conservation and Natural Resources or its successors.

(iii) The 1995 Code of Practice in section 4 defines “Secretary” by reference to the body corporate established by Part 2 of the Conservation, Forests and Lands Act, that is, the Department of Conservation and Natural Resources or its successors.

(iv) The 2006 Code of Practice was made in accordance with sub-section 31(1) of the Conservation, Forests and Lands Act.

68. At all relevant times, the DSE Secretary had knowledge and expertise in relation to the

prevention and suppression of bushfires in the Public Land Area State forests, national parks

and protected public land including those in the Forested Area and the risks and dangers of

bushfires in the Public Land Area State forests, national parks and protected public land

including those in the Forested Area.

Particulars

(i) The Code of Practice – For Fire Management on Public Land (Revision no. 1), published by the Victorian Government Department of Sustainability and Environment, Melbourne, January 2006 (the DSE Code of Practice) The DSE Codes of Practice provides a framework for fire management, procedure and practice on public land in Victoria. A copy of the Code is

50

available for inspection at the offices of the plaintiff’s solicitors by appointment.

(ii) The DSE Code of Practice was established pursuant to sub-section 31(1) of the Conservation, Forests and Lands Act.

(ii) The 1995 Code of Practice records that much of the Australian continent is dry and fire-prone, the geography, vegetation and climate combine to produce one of the most severe fire environments in the world: 1995 Code of Practice, paragraph 1.

(iii) Compliance with the DSE Code of Practice is a requirement for all fire-related activities on public land and is the responsibility of the DSE Secretary: DSE Code of Practice, paragraph 16.

(iii)(iv)The DSE 2006 Code of Practice records that much of the Australian continent is fire-prone, particularly parts of Victoria where dry, windy summer conditions, combined with electrical storms, lead to frequent fires, which can be difficult to suppress and may cause significant economic damage: DSE 2006 Code of Practice, paragraph 3.

69. Further, at all relevant times, the DSE Secretary knew or ought reasonably to have known that

excessive fuel loads in the Public Land Area State forests and national parks posed a

significant bushfire risk.

Particulars

(i) The DSE is required by the DSE Codes of Practice to attempt to establish promptly the place of origin and cause of all wild fires on public land: paragraph 104 of the 1995 Code of Practice: paragraph 258 of the 2006 DSE Code of Practice.

(ii) Under the DSE Codes of Practice, the DSE must, inter alia, consider fuel management on and around sites of known high hazard and/or risk to human life and property on or adjacent to public land and where appropriate implement measures to reduce the possibility of wild fire ignitions: paragraph 109 of the 1995 Code of Practice: paragraph 263 of the 2006 DSE Code of Practice.

70. Further or alternatively, at all material times the DSE Secretary knew or ought to have known

that:

(a) fire severity depends on topography, weather and fuel conditions;

(b) fuel is the only factor over which the land manager is able to exercise control;

(c) fuel management burning is the only practical method of reducing fuel levels over large

areas; and

51

(d) that the manipulation of fuel loads in strategic areas reduces the potential for spotting

from an advancing wildfire, allows wildfire damage to be moderated and facilitates

wildfire control activities.

Particulars

The North East Region Fire Protection Plan (Alexandra and Broadford Fire Districts) (the Broadford Fire Protection Plan), page 29.

71. At all material times, the claimants had no authority or ability to carry out any work for the

prevention and suppression of fire (including planned burning) in any State forest or national

park or on protected public land the Public Land Area, which includes the 95,550ha marked on

the map annexed to this Seventh Amended Statement of Claim and titled Annexure 1 (the

Kilmore Fire Area Public Land).

72. In the premises, the claimants were vulnerable to injury from fire in burning out of the Kilmore

Fire Area Public Land and through State forests and national parks and on all protected public

land adjacent or proximate to the Communities and were dependent for protection against

such injury upon the DSE Secretary to ensure, alternatively to take reasonable care steps to

ensure, that proper and sufficient prescribed burning for the prevention and suppression of fire

was carried out within the Kilmore Fire Area Public Land planned burning was undertaken in

the Forested Area in a timely and adequate way so as to achieve the planned burning benefits

across the whole or substantial parts of the Forested Area and Communities.

73. At all relevant times, the DSE Secretary and the DSE had planned burning expertise and

experience.

Particulars

(i) The DSE Codes of Practice.

(ii) The DSE Fire Management Manual – Prescribed Burning (Version 10.1), February 2008.

74. At all relevant times, the DSE Secretary knew or ought to have known that:

52

(a) timely and adequate planned burning in the Forested Area Kilmore Fire Area Public

Land would produce planned burning benefits and therefore lower the impact of a

bushfire burning in the Forested Area Kilmore Fire Area Public Land Area and therefore

reduce the risk of fire burning out of the Kilmore Fire Area Public Land and into and

through the Communities.

(b) the effectiveness of planned burning decreases as:

(i) burn size and coverage decreases; and

(ii) time since last burn (including planned and unplanned burning) increases.

75. Further, the DSE Secretary was obliged to manage fire and fire related activities on public land

for the purpose of protecting human life, assets and other values from the deleterious effects

of wildfire or inappropriate fire regimes, and to achieve management objectives, through the

definition and application of principles, standards and guidelines, in conjunction with the

Victorian community.

Particulars

(i) The 1995 Code of Practice, paragraphs 26-30; the DSE 2006 Code of Practice, paragraphs 18 – 21.

(ii) The 1995 Code of Practice, paragraphs 36-56; Chapter 4 of the DSE 2006 Code of Practice, paragraph 247.

(iii) The DSE Codes of Practice applies apply to all public land in Victoria including within the Forested Area the Kilmore Fire Area Public Land.

76. At all relevant times, the stated purpose of the DSE Codes of Practice was to promote the

efficient, effective, integrated and consistent management of fire and fire related activities on

public land for the purpose of protecting human life, assets, and other values from the

deleterious effects of wildfire or inappropriate fire regimes, and to achieve management

objectives, through the definition and application of principles, standards and guidelines, in

conjunction with the Victorian community.

Particulars

Paragraph 11 of the 1995 Code of Practice: paragraph 18 of the DSE 2006 Code of Practice.

53

77. At all relevant times, the DSE Codes of Practice:

(a) laid down minimum state-wide standards for fire management on public land in Victoria;

(b) required that any plan, instruction, prescription or guideline developed for activities on

public land in Victoria be consistent with the relevant Code of Practice;

(c) recognised the use of land adjoining public land and the need for the integrated

management of risks and impacts between both public and adjoining private land;

(d) according to its their own terms supported the discharge of the DSE Secretary’s

legislative responsibilities including specifically the duty to carry out proper and sufficient

work for the prevention and suppression of fire in the Public Land Area every State

forest and national park and on all protected public land under sub-section 62(2) of the

Forests Act being the First Fire DSE Duty herein.

Particulars

Paragraphs 1-3, 17-18, 26-30 and 36 of the 1995 Code of Practice; paragraphs 19-21 and 26 of the DSE 2006 Code of Practice.

78. At all relevant times, the DSE Codes of Conduct Practice also contained provisions requiring

that fire management plans be prepared for relevant areas including plans for planned burning

activity.

Particulars

Sections 2.3 and 3.2 of the 1995 Code of Practice: section 2.2 of the DSE 2006 Code of Practice.

79. At all relevant times, the DSE Codes of Practice stated that planned burning is used in

Victoria, inter alia, to reduce fuel levels for fire protection.

Particulars

Section 3 of the 1995 Code of Practice, paragraph 133; Cchapter 3 of the DSE 2006 Code of Practice, paragraph 183.

80. At all relevant times, under the DSE Codes of Practice, in respect of the Public Land Area

State forests and national parks, and therefore in respect of the Forested Area Kilmore Fire

54

Area Public Land, planned burning was only permitted to be undertaken in accordance with an

approved burn plan.

Particulars

Section 3 of the 1995 Code of Practice, paragraph 133; Cchapter 3 of the DSE 2006 Code of Practice, paragraph 197.

81. Under the DSE Codes of Practice, at all relevant times the DSE was required to consider

within its wildfire prevention operations fuel management on and around sites of known high

hazard and/or risk to human life and property on public land.

Particulars

Section 2.2.5 of the 1995 Code of Practice, paragraph 109; Cchapter 4 of the DSE 2006 Code of Practice, paragraph 263.

82. Further, at all relevant times, the DSE regarded planned burning as a serious and effective fire

prevention/suppression technique.

Particulars

(i) In a DSE ‘Fact Sheet’ available on the DSE website entitled “DSE Land & Fire Management – What are planned burns?” (the Fact Sheet), the DSE states:

“Planned burns do not prevent bushfires. However, fire is the strongest tool available to reduce the threat of severe bushfires to life, property and the environment.

In forests planned burns are used to remove dry leaves, twigs, shrubs and some bark. In other environments they are used to reduce the amount of grasses and shrubs. This lowers the amount of fuel available for a bushfire and can reduce its speed, intensity and ability to cause spot fires. By changing the amount of fuel, planned burns break up the landscape and prevent bushfires spreading across large areas.

A less intense bushfire is easier and safer for fire fighters to contain while the fire is still small and also assists residents to successfully defend their properties. An area where a planned burn has been carried out can also provide a safe place for fire fighters to conduct a back burn when suppressing a bushfire.”

(ii) Having regard to the matters referred to in the preceding sub-paragraph, it was the DSE’s belief that planned burning was and is an effective strategy in diminishing the impact of bushfire spread and intensity and thus minimising risk of injury or property damage.

(iii) In the same Fact Sheet, the DSE states:

“Introducing planned fire

The Department of Sustainability and Environment uses planned burns to introduce fire back into the Victorian landscape. DSE manages fire on 7.7

55

million hectares of public land in Victoria, including parks, forests and reserves. Planned burns are the only practical, broad scale land management tool that can achieve the ecological benefits of fire, as well as reducing fuels.”

(iv) The Fact Sheet also records the DSE’s views that the burns must be conducted in an ecologically responsible way and so as to take into account community interests. In regard to that latter issue, the Fact Sheet states:

“Although conducting burns is vital work in reducing bushfire risk and protecting communities and must be done when it can, DSE understands that they can be unpleasant and affect communities.”

(v) The Fact Sheet also records the DSE’s recognition that the landscape of Victoria has effectively dried out and fuel loads have substantially been built up, largely as a result of the practice over a long period of putting out bushfires quickly and keeping them small. The Fact Sheet states:

“The changing fire threat

In Victoria many more people are now living in areas where bushfires occur. A vital part of protecting people and property has been preventing bushfires and quickly suppressing fires that occur. As a consequence, most fires are now controlled when still small - the vast majority of fires in Victoria are successfully contained when they are less than five hectares in size. This has meant that for many ecosystems in Victoria, the length of time between fires has increased. Some parts of Victoria that once burnt naturally every ten to twenty years have remained unburnt for over fifty years. This has allowed dense leaf litter, twigs, shrubs and bark to build up. In some parts of Victoria the amount of fuel is higher than ever seen before. This has increased the risk of more severe bushfires that burn larger areas. There is also a direct link between drought, increased fire activity and more intense fire behaviour. Current drought conditions create more hot, windy days that dry out fuels. Fires during drought conditions are likely to be larger, more intense and harder to control. The last decade has seen a significant and unnatural increase in the number, intensity and impact of bushfires in Victoria – these include the 2003 Alpine Fires, the 2006/07 Great Divide Fires…

(vi) Further, the DSE website carries the following observations in addition to the above Fact Sheet extracts:

“Why do we carry out planned burns?

Conducting planned burns is one of DSE’s most important fire prevention activities. It involves the controlled setting of fires during periods of lower fire risk, to achieve on of three main purposes;

• fuel reduction

• flora and fauna management

• commercial forest regeneration

During an average summer, around six hundred bushfires occur on public land across Victoria. This land includes national parks, state forests, state parks and reserves. An intense bushfire across the landscape can be devastating to the environment, including its plant (sic) and animals. These bushfires also have huge impacts on communities across Victoria, both in the areas directly impacted by fire and in other parts of the state including metropolitan Melbourne. To better manage the risk of bushfire to our environment and communities, the Victorian Government, through the Department of Sustainability and Environment and Parks Victoria, carries

56

out fire prevention activities that help reduce the occurrence and impact of devastating fires such as those experienced in recent summers.

It is important to understand that planned burning operations, particularly fuel reduction burns, do not stop or eliminate the risk of bushfires. However, Victorian research, and similar information from Australia and overseas, clearly shows that firefighters have a much better chance of controlling bushfires in areas where fuel reduction burns have been carried out. ”

83. At all relevant times the DSE Secretary through DSE established a forest management plan

for the Public Land Area State forests and national parks within central Victoria and as part of

such plan kept detailed records of the characteristics of the Kilmore Fire Area Public Land

State forests and national parks within the Forested Area including the kinds of trees and the

fuel loads.

Particulars

(i) Some of the Forested Area Kilmore Fire Area Public Land is within the Central Forest Management Area for the State of Victoria established by the DSE for forest management, for which the DSE maintains a Central Highlands Forest Management Plan issued in May 1998 (FMP).

(ii) It was a stated purpose of the FMP that it conform to all relevant legislation including the Forests Act and the National Parks Act.

(iii) The FMP records that forests of the Central Highlands are amongst the most fire-prone in the world because of the mountainous terrain, flammable vegetation and hot Summer winds: section 8.2 of the FMP. The FMP also records that a key element of relevant regional fire protection plans is a fuel-management strategy based on five zones, and with fuel reduction burns to be undertaken in three of the strategically located zones to maintain fuel to defined hazard levels so as to ensure that fires that start within, or spread into, fuel reduced areas, burn at a lower intensity and are therefore easier to suppress than those in areas carrying higher fuel levels: section 8.2 of the FMP.

(iv) As part of the Central Highlands Forest Management Plan, the DSE maintains data for, inter alia, the Mount Disappointment Area (known as Block 301) and for the Narbethong Area (known as Block 307), and for the Yea River Area (known as Block 297), the Kalatha Area (known as Block 298), and the Yellowdindi Area (known as Block 299).

84. In view of the characteristics of the Kilmore Fire Area Public Land State forests and national

parks within the Forested Area including the kinds of trees and the fuel loads, the DSE

Secretary knew or ought to have known that it was necessary to conduct planned burning to

achieve the planned burning benefits in or through the Forested Area and/or for the

Communities Kilmore Fire Area Public Land in order to reduce the risk of fire burning out of

the Kilmore Fire Area Public Land and into and through the Communities.

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Particulars

(i) The DSE Secretary published a fire protection plan for an area which included the Forested Area Kilmore Fire Area Public Land (being the Broadford Fire Protection Plan).

(ii) The Broadford Fire Protection Plan applied, inter alia, to the Mount Disappointment State forest and the Kinglake National Park.

(iii) The DSE Secretary also published a fire operations plan for an area which included the Forested Area Kilmore Fire Area Public Land (the Fire Operations Plan).

(iv) At all relevant times, the Fire Operations Plan applied, inter alia, to the Mount Disappointment State forest and the Kinglake National Park.

85. At all relevant times, it was the intention of the DSE Secretary that through the Broadford Fire

Protection Plan and the Fire Operations Plan the objectives under the DSE Codes of Practice

of, inter alia, protecting human life and assets by fire suppression activities as aforesaid would

be achieved in the Broadford Fire District which included the Forested Area Kilmore Fire Area

Public Land by implementing the fire protection strategies detailed in the Broadford Fire

Protection Plan and the Fire Operations Plan for that district and area.

86. At all relevant times, there were approved burn plans for the State forests and national parks

within the Forested Area Kilmore Fire Area Public Land as contemplated by the DSE Codes of

Practice and/or the Broadford Fire Protection Plan and/or the Fire Operations Plan pertaining

to the Forested Area Kilmore Fire Area Public Land.

Particulars

A copy of such plans will be provided after discovery and prior to trial.

87. At all relevant times, a major feature of the Broadford Fire Protection Plan was the

classification of all the public land within the area covered by that plan and therefore the

Forested Area Kilmore Fire Area Public Land into five fuel management zones (Zones) having

regard, inter alia, to the following the considerations:

(a) the strategic importance of the area to fire protection;

(b) the appropriateness of burning (and the alternatives) as a means of fuel management;

(c) the natural and developed values on the area being considered;

(d) other management objectives for the area;

58

(e) suppression methods most appropriate to the area;

(f) the principles of environmental care;

(g) information contained in the DSE’s databases and, in particular, the land status,

vegetation types, assets to be protected and fire history;

(h) weather (especially temperature, relative humidity, drought factor, and wind speed) for

the district, which provides a fire danger rating and the number of suitable burning days

per year;

(i) overall fuel hazards;

(j) fire spotting distance, flame height and rates of spread under various forest fire danger

indices;

(k) experience obtained in implementing previous preparedness strategies.

88. At all relevant times, having regard to the matters referred to in the preceding paragraph, the

DSE Secretary designated various Zones to apply in the area covered by the Broadford Fire

Protection Plan and therefore the Forested Area Kilmore Fire Area Public Land including:

(a) Zone 1 - Asset protection (includes lives, buildings, fences, stock, regenerating forest,

flora and fauna values);

(b) Zone 2 - Strategic fuel reduced corridors.;

(c) Zone 3 – Broad-area fuel reduced mosaic;

(d) Zone 4 – Specific flora and fauna management;

(e) Zone 5 – Exclusion of prescribed burning.

Particulars

(i) The Broadford Fire Protection Plan, sections 4.2.13.2 – 4.2.13.6.

(ii) The area of land in each Zone in the Kilmore Fire Area Public Land was as follows:

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The Zoning included the following:

Mount Disappointment State forest:

(i) Zone 1 - north-western fringe of the State forest adjacent to private property. Forms the north-western section of State forest adjacent to private property. There is a heavily populated area with sub-divisions of small allotments in this lightly timbered fringe. The forest area is relatively steep, consists of mainly mixed species forests and would be very difficult to manage during fire suppression activities.

(ii) Zone 2 - section running parallel to above as added protection. Continues on from Zone 1 and extends in a broad area covering the north-west section of the State forest. Again mixed species forests with a lot of gum varieties in the gullies. Major assets require protection such as Camberwell College School Camp, popular day visitor areas, significant stands of Mountain ash forests and the main domestic water catchment and supply reservoir for the surrounding towns.

89. At all material times since 2000 and prior to 7 February 2009, the DSE Secretary through the

DSE undertook planned burning in relation to the Forested Area Kilmore Fire Area Public

Land.

Particulars

(i) The DSE Secretary through the DSE undertook 62 planned burns in or about the Kinglake National Park.

(ii) The planned burns were on average less than 100 hectares in size.

(i) The area of prescribed burning carried out in the period 1 July 2000 to 6 February 2009 by the DSE in the Kilmore Fire Area Public Land was 6,490 ha divided between Zones 1 – 5 as follows:

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Further particulars will be provided before trial.

90. At all material times, the DSE Secretary knew that a major bushfire had occurred in the Mount

Disappointment State forest:

(a) which began on 24 November 1982 at about 12.45pm on private property on the

western side of Mount Disappointment, on a day on which the fire danger index was in

the order of 45-50 (very high to extreme) with temperatures in the order of 40C, relative

humidity of 10% and wind speeds averaging 15-20 km;

(b) which spread rapidly in an easterly direction and by 1900 hours the main front was

estimated to be 11 km from its origin;

(c) which continued to spread in an easterly direction until a south/south westerly wind

change occurred, spreading the northern fire flank to the north and north east;

(d) which fire was found by the DSE not to have been measurably affected by the fuel-

reduction work undertaken by the DSE because the fuel reduction was inadequate.

Particulars

A copy of the Research Report undertaken in relation to the fire on behalf of the DSE is available for inspection at the offices of the plaintiff’s solicitors.

91. At all material times, the DSE Secretary knew that another major bushfire had occurred in

2006 north of Kinglake and west of Glenburn Road covering an area of some 1,600 hectares.

Particulars

The fire started on or about 22 January 2006, with its main run occurring on or about 26 January 2006 when temperatures were high. The fire affected approximately 65 per cent of the so-called Wombelano block of the park north of the Kinglake township.

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92. Further, at all reasonable times the DSE Secretary knew or ought to have known that a report

was published in 2008 dealing with, inter alia, the role of planned burning in relation to bushfire

risk in the State of Victoria, following the Victorian Government’s establishment of an Inquiry

into the Impact of Public Land Management Practices on Bushfires in Victoria, in which report:

(a) the following findings of fact (inter alia) were made:

(i) there was a need for an increase in the extent and frequency of prescribed

burning in catchment areas to mitigate the risks associated with future bushfires;

Particulars

Finding 2.3 of the Inquiry.

(ii) the scale and intensity of the 2002/03 and 2006/07 bushfires in Victoria were the

result of inappropriate fire regimes, and in particular, of an insufficient level of

landscape-scale [planned] burning;

Particulars


(iii) previous land management practices, in particular an insufficient level of planned

burning at a landscape-scale contributed to the scale and intensity of the 2002/03

and 2006/07 bushfires;

Particulars


(b) as a consequence, the following recommendations, inter alia, were made:

(i) that in order to enhance the protection of community and ecological assets, the

DSE increase its annual [planned] burning target from 130,000 hectares to

385,000 hectares, which should be a rolling target, and with any shortfalls to be

made up in subsequent years;

Particulars

Recommendation 2.2 of the Inquiry.

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(ii) that a comprehensive review of the effectiveness of the increased [planned]

burning target in meeting, inter alia, bushfire suppression needs, should be

conducted every three years.

Particulars

Recommendation 2.3 of the Inquiry.

93. In or about June 2008, the DSE Secretary developed a Living with Fire – Victoria’s Bushfire

Strategy document which recognised, inter alia, that high fuel loads due to decades of

ineffective fire suppression had significantly raised the risk of bushfire threat, and that a key

theme in the strategy was to significantly increase the amount of planned burning across

Victoria to reduce fuel loads.

Particulars

A copy of the Living with Fire – Victoria’s Bushfire Strategy document is available for inspection at the offices of the plaintiff’s solicitors.

94. Further, in or around 2008, the DSE Secretary developed a corporate plan for 2008-11 which

recognised the need for increased planned burning by prescribing an increase to the planned

burning target to 4-6% of public land in contrast with the then Treasury funded measure of

only 1.7% of total public land.

Particulars

The DSE corporate plan for 2008-11. A copy of the plan is available for inspection at the offices of the plaintiff’s solicitors.

95. At all material times prior to on or about 7 February 2009, the three year rolling average for

area burnt of public land in Victoria as planned burning by the DSE was less than 150,000

hectares representing less than 1.9% of the total public land across Victoria.

96. In the period which was several months prior to 7 February 2009, there were excessive fuel

loads and dryness in areas within the State forests and the national parks within the Forested

Area Kilmore Fire Area Public Land.

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97. Further, at all relevant times it was reasonably foreseeable to the DSE Secretary that:

(a) a discharge of electricity from the powerline could cause ignition of flammable material

in the vicinity of the discharge;

(b) such ignition could produce a fire which might spread over a wide geographic area,

depending on inter alia wind direction and velocity;

(c) such fire could enter the Forested Area Kilmore Fire Area Public Land;

(d) if planned burning was not undertaken within the Forested Area in a timely and

adequate way the planned burning benefits might not be achieved;

(e) if planned burning was not undertaken within the Forested Area Kilmore Fire Area Public

Land in a timely and adequate way the risk of the fire in the Forested Area Kilmore Fire

Area Public Land burning out of the Kilmore Fire Area Public Land and into and through

the Communities would be increased;

(f) in the event of a fire the absence of proper and sufficient planned burning benefits might

cause death or injury to persons and loss of or damage to property within the fire area

and consequential losses including economic losses;



business in the fire area or affected areas;



areas;

and thereby cause economic loss to those persons or the owners of those properties or

businesses.

(h) the risks referred to in paragraphs (a) to (g) (collectively the DSE risks) were greater

during periods of high or extreme bushfire risk.

98. At all material times, the claimants:

(a) had no ability, or no practical and effective ability, to prevent or minimize the DSE risks;

(b) were vulnerable to the impact of the DSE risks;

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(c) consequently, were to a material degree dependent for the protection against the DSE

risks upon the DSE Secretary to ensure, alternatively to take reasonable steps care to

ensure, that proper and sufficient planned burning for the prevention and suppression of

fire was carried out in the Kilmore Fire Area Public Land planned burning was

undertaken in the Forested Area in a timely and adequate way so as to achieve the

planned burning benefits across the whole or substantial parts of the Forested Area and

Communities.

99. In the premises, and having regard to the First DSE Fire Duty and the Second DSE Fire Duty,

at all material times the DSE Secretary owed to the claimants a duty:

(a) to take reasonable care, by its officers, servants and agents ; and

(b) to ensure that reasonable care was taken, by any agents, contractors, or other persons

engaged by it ,

to ensure, alternatively to take reasonable steps to ensure, that timely and adequate planned

burning was undertaken in the Forested Area so as to achieve the planned burning benefits

(the DSE Duty).

In the premises, at all material times the DSE Secretary owed to the claimants a duty to

ensure, alternatively to take reasonable care to ensure, that proper and sufficient planned

burning for the prevention and suppression of fire was carried out in a timely and/or efficient

manner for the Kilmore Fire Area Public Land (the DSE Duty).

100. [There is no paragraph 100 (SPI par.372)]In the premises the:

(a) First DSE Fire Duty; and/or

(b) Second DSE Fire Duty; and/or

(c) DSE Duty,

included an obligation to undertake planned burning in a timely and adequate manner within

and across the Forested Area.

101. [There is no paragraph 101 (SPI par.373)]The DSE Secretary was required by:

65

(a) the First DSE Fire Duty; and/or

(b) the Second DSE Fire Duty; and/or

(c) the DSE Duty,

to undertake the planned burning and/or to take appropriate and sufficient measures and/or to

take reasonable steps to undertake the planned burning in the Forested Area in a timely and

adequate manner so as to achieve the planned burning benefits and avoid or minimise the

DSE risks resulting from the fire spreading in or through the Forested Area and affecting the

Communities.

Particulars

The planned burning required to be carried out included:

(i) such burning as was adequate and timely to ensure that the fuel load within the Mount Disappointment State forest would not result in fire spotting into other parts of the Forested Area as would affect Communities; and

(ii) such burning as was adequate and timely to ensure that the fuel load within the Forested Area would result in Communities having the advantage of some or all of the planned burning benefits both before and after the wind change referred to in paragraph 139 hereof.

DSE – breaches of fuel management duties to the claimants9

102. At all relevant times prior to and on 7 February 2009, the DSE Secretary breached:



(c) the DSE Duty,.

by not undertaking any relevant planned burning alternatively timely and adequate planned

burning in the Forested Area so as to achieve the planned burning benefits in and through the

Forested Area and for the benefit of the Communities.

Particulars

(i) The planned burning in the Forested Area was not capable of achieving the

planned burning benefits as aforesaid.

9 SP Ausnet Defence pleading, paragraphs 374ff.

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(ii) Further particulars will be provided before trial.

(i) It was unreasonable for the DSE Secretary not to have ensured that an average annual area of 4,800 ha was burnt in the Kilmore Fire Area Public Land during the eight years from 1 July 2000 to 6 February 2009 (the relevant period).

(ii) It was unreasonable that the areas of the prescribed burns carried out in the Kilmore Fire Area Public Land during the relevant period ranged from 30 ha to 407 ha, of which 59% were less than 200 ha, and 84% were less than 300 ha.

(iii) It was unreasonable for the DSE Secretary not to have ensured that prescribed burns carried out in the Kilmore Fire Area Public Land during the relevant period were at least 500 ha in area, alternatively were at least 1,000 ha, alternatively were at least 1,500 ha.

(iv) It was unreasonable for the DSE Secretary not to have carried out prescribed burning in the Kilmore Fire Area Public Land in the relevant period such that the Overall Fuel Hazard in the Kilmore Fire Area Public Land would not have exceeded Surface Fuel “High”, Elevated Fuel “High” and Bark Fuel “High” on 7 February 2009 (the said prescribed burning may be identified on the map annexed to this Seventh Amended Statement of Claim and titled Annexure 2).

(v) Contrary to the requirements of the Broadford Fire Protection Plan and unreasonably, the average annual area that was fuel reduced in the Kilmore Fire Area Public Land during the relevant period was 811 ha, an annual rate of less than 1% of the total Kilmore Fire Area Public Land.

(vi) Contrary to the requirements of the Broadford Fire Protection Plan and unreasonably, the average annual area burnt in Zones 1-3 within the Kilmore Fire Area Public Land during the relevant period was 687 ha.

DSE Secretary – Causation10

103. During the afternoon of 7 February 2009, the Kilmore fire spread in the manner indicated in

the particulars to paragraph 139 below.

104. By reason of fire spotting out of the Mount Disappointment State forest, the Kilmore fire

extended further into and then out of the Forested Area Kilmore Fire Area Public Land.

Particulars

(i) The townships of Humevale, Eagle Nest, Arthurs Creek, Dixons Creek, St Andrews, Strathewen, Steels Creek, Yarra Glen and Chum Creek and the Coombs Road area between Humevale and Kinglake West were affected by


67

new or further fires caused by spotting from the western slopes of Mount Disappointment in the Mount Disappointment State forest which had not been the subject of any or any adequate planned burning:

(ii) Upon the wind change referred to in the particulars to paragraph 139, the new or further fires referred to in the preceding paragraph travelled and spotted in a north-easterly direction and affected the townships of Clonbinane, Kinglake West, Kinglake Central, Kinglake East, Kinglake, Pheasant Creek, St Andrews North, Glenburn, Hazeldene and Flowerdale.

(iii) But for the spotting referred to in the preceding paragraphs the townships of Humevale, Eagle Nest, Arthurs Creek, Dixons Creek, St Andrews, Strathewen, Steels Creek, Yarra Glen and Chum Creek and the Coombs Road area between Humevale and Kinglake West and the townships of Clonbinane, Kinglake West, Kinglake Central, Kinglake East, Kinglake, Pheasant Creek, St Andrews North, Glenburn, Hazeldene and Flowerdale would not have been affected by the Kilmore fire.

105. By reason of the intensity and speed of the fire, and fire spotting out of the State forests and

national parks within the Forested Area Kilmore Fire Area Public Land, caused or exacerbated

by the failure to take planned burning in an adequate or timely manner, the Kilmore fire

extended into the Communities.

Particulars

The plaintiff refers to and repeats the particulars to paragraph 104 above.

106. By reason of the intensity and speed of the fire and the fire spotting out of the State forests

and national parks within the Forested Area Kilmore Fire Area Public Land, caused or

exacerbated by the failure to take planned burning in an adequate or timely manner to carry

out proper and sufficient planned burning for the prevention and suppression of fire in a timely

and/or efficient manner, fire agencies were unable to suppress the Kilmore fire, either before

or after the wind change referred to in paragraph 139 below, in the Forested Area and/or the

Communities.

107. The matters referred to in paragraphs 103 to 106 above were caused by the breach of:



(c) the DSE Duty;.

as aforesaid.

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Particulars

But for the breaches of the duties as aforesaid there would have been no or reduced fire spotting and/or planned burning benefits would have been achieved in respect of each of:

(i) the Toolangi State forest; and/or

(ii) the Mount Robertson State forest; and/or

(iii) the Mount Disappointment State forest; and/or

(iv) the Kinglake National Park; and/or

(v) the Yarra Ranges National Park; and/or

(vi) Toorourrong Reservoir Park; and/or

(vii) the Wandong Regional Park; and/or

(viii) the Kinglake West Education Area; and/or

(ix) the Castella Education Area; and/or

(x) the Communities.

107A. Further or alternatively, had the DSE Secretary not breached:



(c) the DSE Duty;

the fire which became the Kilmore fire would have burnt a much smaller area.

Particulars

The area which would have been burnt is, approximately, the area shown on the map annexed to this Seventh Amended Statement of Claim and titled Annexure 3.

108. The Kilmore fire was a natural and foreseeable consequence of the breaches of duty alleged

against the DSE Secretary in the preceding paragraphs.

Loss and damage – DSE Secretary11

109. Further or in the alternative to paragraphs 25 (regarding SPI), further or alternatively 53D

(regarding SPI and UAM), by reason of the breach by the DSE Secretary of:

11 SP Ausnet Defence pleading, paragraphs 381.

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(c) the DSE Duty;

the claimants suffered loss or damage.

109A. By reason of the matters set out in:

(a) the preceding paragraph – DSE Secretary is liable for the claimants’ loss and damage;

further or alternatively

(b) (so far as claimants make ELPD claims in an action for damages arising out of a failure

to take reasonable care) paragraph 53D and the preceding paragraph – DSE Secretary,

together with SPI, UAM and CFA (as alleged in paragraph 145 below), is together with

one or more other persons a person whose acts or omissions caused the claimants’ loss

and damage, within the meaning of Part IVAA of the Wrongs Act, and accordingly liable

in proportion to its responsibility.

SECTION G – COUNTRY FIRE AUTHORITY (“CFA”) – Fire Suppression duties12

109B. Further and in the alternative to paragraphs 8 to 109A, by reason of Part IVAA of the Wrongs

Act the plaintiff adopts SPI’s claims against the fourth defendant (“CFA”) as follows.

110. At all relevant times the CFA was a body corporate capable of suing and being sued.

Particulars

Section 6(2) of the Country Fire Authority Act 1958 (Vic) (the CFA Act).

111. At all relevant times the CFA was established for the more effective control of the prevention

and suppression of fires in the country area of Victoria.


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Particulars

Section 6(1) of the CFA Act.

112. At all relevant times, liability resulting from an act or omission done or omitted to be done by:

(a) the Chief Officer under the CFA Act;

(b) any officer exercising the powers of the Chief Officer;

(c) any officer or member of any brigade or group of brigades or an interstate fire brigade;

(d) a volunteer auxiliary worker or a person to whom section 30A of the CFA Act applied

(including, inter alia, a relevant employee of the DSE or a relevant employee of Parks

Victoria),

in the exercise of a power or the discharge of a duty under the CFA Act or the regulations

made under that Act, attached to the CFA.

CFA statutory duty to the claimants13

113. At all relevant times the CFA was under a duty, inter alia, to take, superintend and enforce all

necessary steps for the prevention and suppression of fires and for the protection of life and

property in case of fire in the country area of Victoria (the CFA Statutory Suppression Duty)

Particulars

Section 20 of the CFA Act.

114. At all relevant times the CFA Statutory Suppression Duty imposed on the CFA an obligation in

the country area of Victoria, inter alia:

(a) to have CFA resources ready and available to suppress fire;

(b) to apply other resources available to the CFA to suppress fire;

(c) to quickly and effectively suppress fire if practicable including having regard to any

increasing risk that the fire may become more uncontrollable;


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(d) to identify and implement all other fire suppression measures reasonably available to the

CFA including identifying and then utilising corridors and/or strips of land or other areas

where the resources referred to in (a) and (b) would be sufficiently concentrated to

achieve suppression,

so as avoid or limit damage a fire might otherwise cause to life and/or property and/or to

economic interests (each an effective suppression measure and collectively the effective

suppression measures).

Particulars

The obligation arising from the duty as aforesaid is inferred from a proper construction of section 20 of the CFA Act.

115. The CFA Statutory Suppression Duty was owed by the CFA to the claimants.

Particulars

The object of protecting the claimants is to be inferred from the proper construction of the CFA Act.

CFA common law duty to the claimants14

116. Further, at all relevant times, the CFA had knowledge and expertise in relation to bushfire risks

and of the need to suppress a bushfire as soon as practicable in order to protect the public

from personal injury loss and damage, and/or loss of or damage to property and/or economic

loss.

Particulars

(i) At all relevant times the CFA knew that the best opportunity to bring a fire under control is at or near the point of ignition when the fire is small.

(ii) At all relevant times the CFA knew that the role of first attack (first attack) is to contain control the fire swiftly at its initial stage so as ultimately to suppress the fire and minimise the risk to life and property.

(iii) At all relevant times the CFA knew that a number of factors determine the success of a first attack, particularly once the fire danger index reaches the maximum range, including the delay between the fire ignition and when the fire is first reported, the size of the fire when attack crews arrive, the


72

relevant fuel load, the resources committed, the need to provide for fire fighter safety, and the weight of first attack, that is, the number of resources first applied.

(iv) At all relevant times, the CFA knew that in addition to fire agency personnel, the timely application of private units, industry brigades, aircraft and sufficient numbers of fire fighting appliances and crews on foot, to fight the fire, the first attack effort will improve the likelihood of first attack success.

(v) At all relevant times the CFA knew that first attack is successful when ground crews and aircraft can quickly gain access to and make an effective and safe attack on the fire to limit its size.

(vi) At all relevant times the CFA knew that the vast majority of fires which commence in country Victoria are contained as small fires due to the first attack strategy.

117. At all material times, in the week leading up to 7 February 2009, the CFA determined that it

would adopt a first attack strategy as an effective suppression measure.

Particulars

(i) On or about 6 February 2009, the CFA sent various emails to its personnel, outlining the extreme fire weather and the prediction that first attack was likely to be ineffective unless conducted soon after ignition.

(ii) On or about 6 February 2009, the CFA sent pager messages to CFA personnel to ensure that adequate crews would be on hand the following day and that relief crews would be available.

(iii) At all relevant times prior to 7 February 2009, the CFA and the other fire and other agencies upgraded their level of readiness in order to be able to respond at short notice to fire risks on 7 February 2009.

118. At all material times prior to 7 February 2009, the CFA had access to the resources of fire and

other agencies to be available to assist in fire suppression efforts to be conducted under the

control or supervision of the CFA.

Particulars

(i) Pursuant to Heads of Agreement and Partnership Guidelines, both dated 25 October 2006 and made between the CFA and the DSE Secretary, the CFA had access to resources from within the DSE to enable the CFA to respond to incidents quickly with the support of those resources. So far as the plaintiff is able to say prior to discovery, a copy of the Heads of Agreement and Partnership Guidelines may be inspected at the offices of the solicitors for SPI by appointment.

(ii) Through its arrangements with the MFB, the CFA had access to resources from within the MFB to enable the CFA to respond to incident quickly with the support of those resources.

(iii) Through its joint initiative with the DSE, tThe CFA had access to the State Aircraft Unit (SAU) for resources from within managed by the State Aircraft Unit (SAU) to be available to when responding to incidents.

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118A. At all relevant times:

(a) the CFA had access to the resources managed by the SAU;

(b) the CFA had operational control, alternatively capacity to control the dispatch of aircraft

by the State Air Desk, the aircraft coordination and dispatch function of the SAU;

(c) further, the State Air Desk was subject to the direction of the CFA.

Particulars

(i) The SAU is governed by the Aviation Management Committee.

(ii) The Aviation Management Committee is an entity of the DSE and CFA.

(iii) The SAU reports to the CFA Chief Officer and the DSE Chief Officer, Fire & Emergency Management.

(iv) The SAU is responsible for the operation of the State Airdesk.

119. At all relevant times, the CFA knew or ought to have known that the DSE also had a first

attack strategy in relation to wildfire.

Particulars

Section 4.4 of the DSE’s Fire Management Manual – Fire Suppression.

120. At all material times, the CFA knew or ought to have known that the area south and east of

Kilmore contained townships and/or communities and/or residential homes including the

Communities and the communities of Heathcote Junction, Wandong, Wallan, Kilmore and

Kilmore East.

121. At all relevant times, the CFA knew or ought to have known that there were plantations (the

Plantations) in the area south east of Saunders Road, Kilmore East and west of the Hume

Freeway (the Hume) and bordering O’Grady’s Road.

Particulars

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So far as the plaintiff is able to say prior to discovery, a copy of a map disclosing the Pplantations is available for inspection at the offices of the solicitors for SPI.

122. [There is no paragraph 122 (SPI par.394)]At all relevant times, the CFA knew or ought to have

known that the Hume ran between the Forested Area and the area immediately south east of

Kilmore East.

123. In the premises, at all material times prior to and on 7 February 2009, the CFA knew or ought

to have known that if a bushfire started in the area near Saunders Road, Kilmore East, and

was fanned by a north or north westerly wind, then unless that fire was controlled and,

ultimately, suppressed as soon as practicable, that fire would, or would be likely to, enter the

pPlantations and/or the Forested Area.

124. At all relevant times prior to and on 7 February 2009, the CFA knew or ought to have known

that if a fire entered the pPlantations, and/or the Forested Area it would be likely that the CFA

would be unable to suppress it to be uncontrollable.

125. [There is no paragraph 125 (SPI par.397)]At all relevant times prior to and on 7 February

2009, the CFA knew or ought to have known that if a fire entered the plantations as aforesaid,

it would be significantly more difficult, alternatively impossible, to suppress.

126. [There is no paragraph 126 (SPI par.398)]At all relevant times, the CFA knew or ought to have

known that the Hume was a significantly wide strip of land over and immediately adjacent to

which there was little vegetation or trees and therefore little or no fuel which would be ignited

during the run of a fire which might start in the area near Saunders Road, Kilmore East and be

fanned by a north or north westerly wind.

127. Further, at all relevant times prior to 7 February 2009, the CFA had developed fire suppression

plans for fire response zones around the Kilmore area, which included a plan for a fire

response zone designated Kilmore 4 or KILM4 in which the Valley Span was located and

75

which recognised that a fire starting in that zone had the potential to spread into the

plantations within and/or proximate to the zone and thence to the Hume, and across the Hume

to Wandong and Clonbinane.

Particulars

(i) At all relevant times prior to 7 February 2009, the CFA had prepared for the Kilmore Fire Brigade an “Incident Pre-plans for Kilmore Response Zones” document, which set out 8 zones around Kilmore and identified relevant considerations and initial tactics for each relevant zone.

(ii) Zone Kilmore 4 within the Pre-plans document referred to in the preceding sub-paragraph identified a number of considerations, including “steep-undulating country with limited access tracks, washaways, plantations and quarries”.

(iii) Zone Kilmore 4 within the Pre-plans document referred to in the preceding sub-paragraphs identified a number of considerations, including the potential of a fire starting in Zone 4 to spread to the Hume, and on to Wandong and Clonbinane.

(iv) Zone Kilmore 4 within the Pre-plans document referred to in the preceding sub-paragraphs identified a number of “initial tactics” including “Kilmore appliances to the western flank - Clonbinane and Broadford to eastern flank - Wandong to either flank or strategic break depending on wind direction - fire location and access - Notify DSE and Midway plantations – Air support to protect plantation”.

(v) A copy of the document referred to in the preceding paragraphs is available for inspection at the offices of the plaintiff’s solicitors by appointment.

128. At all relevant times, the CFA knew or ought to have known that if a fire:

(a) commenced in the area north of Saunders Road, Kilmore East marked with a circle on

the map annexed to this 7SOC and titled Annexure 4;

(b) started in the area near Saunders Road, Kilmore East, and if that fire was being fanned

by a north to north westerly winds;

(c) crossed Saunders Road and entered the property at 240 Saunders Road owned by

Craig Harrop (Harrop property);

the Harrop property would then be the Hume might be a strategic position on or around which

CFA, and DSE and MFB fire suppression resources, fire fighting appliances and crews and, if

possible, aerial resourcesincluding fire brigade trucks, could be positioned so as to attack,

control and, thereafter enable suppression of the fire before it entered the Plantations

including by utilising the Hume itself as a natural fire break or control line.

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Particulars

The reasons why the Harrop property would then be a strategic position to fight the fire are as follows.

(i) At all relevant times the Harrop property was a wide, open space.

(ii) At all relevant times the Harrop property consisted of eaten out pasture with low grassland fuel, as well as some patches of eucalypt trees and some structures including a water tank.

(iii) At all relevant times the Harrop property was on Saunders Road and was accordingly accessible to fire fighting appliances (subject to the progression of the fire).

129. At all relevant times, having regard to the matters referred to in the preceding paragraphs, the

CFA knew or ought to have known that if a fire started in the area near Saunders Road,

Kilmore East and that fire was being fanned by north to north westerly winds, effective

suppression measures would likely include:

(a) implementing a first attack strategy so as to put control and, ultimately, suppress the fire

out as quickly and effectively as possible including so as to prevent it from getting into

the pPlantations;

(b) utilising all available fire agency CFA and other resources including those of the DSE,

the MFB and those managed by the SAU;

(c) deploying those resources as quickly as possible to suppress the fire;

(d) utilizing any areas in strategic locations with low fuel loads and open spaces (such as

the Harrop property) the Hume as a fire break, control line and/or as an area of to

concentrated fire suppression activity so as to stop the fire from crossing the highway

and entering the Forested AreaPlantations.

130. Further, at all relevant times, prior to and on 7 February 2009, the CFA had established a CFA

Incident Control Centre (Kilmore ICC) at the Kilmore fire brigade station for the purpose of

implementing some or all of the effective suppression measures should a fire occur within the

area for which the Kilmore ICC had been assigned responsibility within the CFA.

131. At all relevant times it was reasonably foreseeable to the CFA that:

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(a) a discharge of electricity from a powerline in the area near Saunders Road, Kilmore

East, including from the Valley Span, could cause ignition of flammable material in the

vicinity of the discharge;

(b) such ignition could produce a fire which might spread over a wide geographic area,

depending on inter alia wind direction and velocity;

(c) such fire could enter the Forested AreaPlantations;

(d) if effective suppression measures were not undertaken the fire would enter the Forested

AreaPlantations;

(e) once the fire had entered the Forested AreaPlantations it would be unable to be

suppresseduncontrollable by fire agencies;

(f) the failure of the CFA to apply effective suppression measures might cause death or

injury to persons and loss of or damage to property within the fire area and

consequential losses including economic losses;


(i) disrupt or impair the income-earning activities of persons residing or carrying

on business in the fire area or affected areas;

(ii) impede the use or amenity of property located in the fire area or affected areas;

or


areas;

and thereby cause economic loss to those persons or the owners of those properties

or businesses;

(h) the risks referred to in paragraphs (a) to (g) (collectively the CFA failure to suppress

risks) were greater during periods of high or extreme bushfire risk.

132. Further, at all material times the claimants:

(a) had no ability, or no practical and effective ability, to prevent or minimize the CFA failure

to suppress risks;

(b) were vulnerable to the impact of the CFA failure to suppress risks;

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(c) consequently, were to a material degree dependent for protection against the CFA

failure to suppress risks upon the CFA to ensure, alternatively to take reasonable steps

to ensure, that the CFA would implement the effective suppression measures.

133. Further, at all relevant times, the CFA knew or ought reasonably to have known that the

effective suppression measures if implemented would enable the claimants endangered by the

CFA failure to suppress risks to be protected from the same.

Particulars

If the effective suppression measures were implemented, the fire would be suppressed and put under control and would not expose the claimants to the CFA failure to suppress risks.

134. In the premises, at all material times, the CFA owed to the claimants a duty:



engaged by it;

to ensure, alternatively to take reasonable steps to ensure, that it implemented the effective

suppression measures so as to avoid the loss and damage resulting from the CFA failure to

suppress risks (the CFA Suppression Duty).

135. At all relevant times prior to and on 7 February 2009 the CFA was required by:

(a) the CFA Statutory Suppression Duty; and/or

(b) the CFA Suppression Duty;

to implement effective suppression measures in the event of a fire so as to enable the

claimants endangered by the CFA failure to suppress risks to avoid loss and damage resulting

from the CFA failure to suppress risks.

Particulars

The duties as aforesaid required the CFA to, among other things:

(i) have the Kilmore ICC fully operational and ready to respond to a fire quickly;

(ii) have the Kilmore ICC accordingly adequately and appropriately equipped with all relevant communication technology;

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(iii) have the Kilmore ICC accordingly adequately and appropriately staffed with personnel possessing adequate relevant skill and experience;

(iv) have the fire brigade stations within, inter alia, Regions 2, 12, 13 and 14 of the CFA adequately equipped with fire suppression equipment including tankers filled with water;

(v) have on standbyquickly deploy aerial resources air tanker support which could respond as part of a first attack strategyto any fire;

(vi) implement a first attack strategy to control and, ultimately, suppress any fire prior to it reaching high risk areas including the pPlantations;

(vii) if required, access all relevant available equipment and resources fire fighting appliances and crew including those available from other fire agencies including the DSE and/or the MFB and/or from the Aircraft Unit;

(viii) if required, deploy those relevant equipment and resources quickly enough so as to take strategic advantage of natural fire breaks, including the Hume, so that a fire would not enter the Forested Area Plantations.

CFA breaches of duties to the claimants15

136. At around approximately 11.45am on 7 February 2009 the Kilmore fire started as a grass fire

near Saunders Road at Kilmore East in the State of Victoria.

137. At approximately 12.45pm 40pm on 7 February 2009 the Kilmore fire reached the

pPlantations.

138. At approximately 1.58pm on 7 February 2009 the Kilmore fire reached and crossed the Hume

approximately 2 kilometres north of Wandong.

139. Upon the Kilmore fire entering the Plantations it became unable to be suppressed:.

(a) entering the plantations;

(b) crossing the Hume; and/or

(c) entering the Forested Area,

it became uncontrollable and unable to be suppressed.


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Particulars

(i) Once the Kilmore fire entered the Plantations it increased in intensity and spotting. between 2.00pm and 5.00pm on 7 February 2009, the fire front of the Kilmore fire travelled in a south-easterly direction under the influence of 60-90 kilometres per hour north-westerly winds, through timber plantations and agricultural land, before entering the Mount Disappointment State Forest;

(ii) Further, once the Kilmore fire entered the Plantations it was much more difficult, if not impossible, for fire fighters to safely gain access to and fight the Kilmore fire. the Kilmore fire reached the base of Mount Disappointment at around 3.30pm, then reached the crest of that Mount;

(iii) at all material times after 2.00pm on 7 February 2009, the Kilmore fire created spot fires for up to 25 kilometres ahead of the main head of the fire, and thereby reached into townships including Humevale, Eagle Nest, Arthurs Creek, Dixons Creek, St Andrews, Strathewen, Steels Creek, Yarra Glen and Chum Creek and the Coombs Road area between Humevale and Kinglake West and the townships of Kinglake West, Kinglake Central, Kinglake East, Kinglake, Pheasant Creek, Glenburn, Hazeldene and Flowerdale;

(iv) the weather conditions on 7 February 2009 were extreme and included strong northerly winds and temperatures across much of the State of Victoria in excess of 40 degrees with low humidity;

(v) during the course of mid to late afternoon a significant wind change occurred across the State of Victoria with the effect that strong winds which had been travelling from a north westerly direction travelled from a south westerly direction;

(vi) the wind change referred to in the preceding sub-paragraph impacted the Kilmore fire in the Kinglake region in the late afternoon of 7 February 2009 at around 5.45pm and in turn caused further personal injury loss and damage to townships including Clonbinane, Humevale, Eagle Nest, Arthurs Creek, Dixons Creek, St Andrews, St Andrews North, Strathewen, Steels Creek, Yarra Glen, Chum Creek, Kinglake West, Kinglake Central, Kinglake East, Pheasant Creek, Glenburn, Hazeldene and Flowerdale.

140. At all relevant times prior to and on 7 February 2009, the CFA breached:


(b) the CFA Suppression Duty,

by not implementing effective suppression measures.

Particulars

In circumstances where:

(a) the Kilmore ICC was the nominated level 3 incident control centre for fires within the Mitchell Catchment, which included the Northern Highway Group of CFA brigades and the Seymour Group of CFA brigades;

(b) (i) The the Kilmore fire started at or about 11.45 am on 7 February 2009 as a grass and scrub fire; and at all relevant times during its first hour travelled at not more than 2.5 km per hour.

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(c) (ii) The the Kilmore fire was first observed, and its point of origin identified, shortly after ignition, further, and was reported swiftly to the CFA at approximately 11.49 am;. Peter Coleman in the Pretty Sally fire tower, near Kilmore, spotted smoke at approximately 11:47pm and reported it to the CFA.

(d) (iii) the Kilmore ICC was the nominated level 3 incident control centre for fires within the Mitchell Catchment, which included the Northern Highway Group of CFA brigades and the Seymour Group of CFA brigades;

(e) by approximately 12 noon, the first CFA tankers had arrived at the Kilmore fire and were unable to control the fire;

(f) thereafter, and by approximately 12.13 pm, the Kilmore fire had crossed Saunders Road;

(g) as soon as the Kilmore fire crossed Saunders Road it entered the Harrop property;

(h) at all times between approximately 11.49 am and approximately 12.40 pm, the CFA knew or ought to have known due to the location of the fire start, information from CFA officers in the field, the geography of the area and the wind conditions on 7 February 2009, that the Kilmore fire would burn in a south to south-east direction, being the direction of the Plantations;

(i) as a result, the CFA was in fact aware, or alternatively ought to have been aware, that there was a real risk that the Kilmore fire would approach and thereafter enter the Plantations,

the CFA:

(i) did not implement a timely, adequate or effective first attack strategy on the Kilmore fire;

(ii) did not deploy adequate resources to prevent the Kilmore fire entering the Plantations;

(iii) by approximately 12 noon, once it appreciated the seriousness of the Kilmore fire:

(A) did not ensure that all available CFA and DSE fire fighting appliances and crew within approximately 50 kilometres by road of the Kilmore fire attended the Kilmore fire;

(B) did not request sufficient numbers of ground crews and fire fighting appliances; and

(C) did not coordinate the responding ground crews and fire fighting appliances to engage or engage adequately in first attack.

(iv) Further,

(A) By 12.05 pm, the State Air Desk received a request for fire fighting aircraft.

(B) Aircraft were not dispatched to the Kilmore fire until approximately 12.22 pm.

(C) During the period 12.05 pm - 12.22 pm, there were no other major fires burning in Victoria, other than the Bunyip fire to which significant aerial resources had already been deployed.

In these circumstances, without proper reason, the CFA (through its control, alternatively, capacity to control, further or alternatively, direction of the SAU and the State Air Desk) was able to cause air resources speedily to be deployed, but in fact took far too long to deploy aerial resources to the Kilmore fire.

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(iv)(v) Further, Aas at 11.497 am on 7 February 2009, the Kilmore ICC was not fully operational as a level 2 or level 3 incident control centre

(v) As at 11.47 am on 7 February 2009, the Kilmore ICC was not adequately resourced with appropriate communications equipment to operate as a level 2 or level 3 incident control centre. The Kilmore ICC did not have adequate equipment to enable it to communicate effectively and quickly with CFA personnel or any other personnel of the other fire agencies.

(A) (vi) As at 11.47 am on 7 February 2009, the Kilmore ICC was not adequately and appropriately staffed with personnel possessing adequate relevant skills and experience. There were no persons on site who had been pre-assigned to perform the following functions:

• (A) incident controller;

• (B) operations officer;

• (C) planning officer;

• (D) logistics officer,

in the event of a fire in the vicinity of the Kilmore ICC.

(B) (vii) Further, as at 11.479 am on 7 February 2009, there was not adequate personnel located on site at the Kilmore ICC with adequate qualifications to fulfil those functions in response to a level 2 or a level 3 fire.

(C) (viii) As a result of the matters referred to in the preceeding paragraphs the CFA was unable to immediately form an incident management team (IMT) situated in the Kilmore ICC tasked with responsibility, inter alia, of suppressing the Kilmore fire.

(D) (ix) The fire was initially managed by the Seymour Group headquarters of the CFA (the Seymour Group HQ).

(E) (x) At or around 12.05 pm the Regional Duty Officer for Region 12 at the Seymour Regional Emergency Coordination Centre (the Seymour RECC) advised the captain of the Kilmore Fire Brigade that he would be Incident Controller of the Kilmore fire and that he would operate out of the Kilmore ICC.

(F) (xi) As a result of the matters referred to in paragraphs (A) and (B) iv to vii above, the captain of the Kilmore Fire Brigade was unable to establish an IMT and take control of the management of the Kilmore fire until approximately 1.05 pm.

(G) (xii) Between 12.05 pm and 1.05 pm the captain of the Kilmore Fire Brigade arranged for persons to attend the Kilmore ICC to perform functions within an IMT, including the roles of operations officer, planning officer and logistics officer.

(H) (xiii) A situation officer was not appointed at the Kilmore ICC until 12.20 pm.

(I) (xiv) An operations officer was not appointed at the Kilmore ICC until 12.30 pm.

(J) (xv) A planning officer was not appointed at the Kilmore ICC until 12.45 pm.

(K) (xvi) The captain of the Kilmore Fire Brigade was not qualified to perform the function of incident controller at a level 3 fire. A level 3

83

incident controller was not appointed as incident controller of the Kilmore fire until 4.30pm, more than four and a half hours after the fire had started, more than three hours after the fire had entered the Pplantations and more than two hours after the fire had crossed the Hume;

(xvii) The CFA officer commanding an operations point on the fire ground from which arriving fire fighting units were assigned tasks (the Operations Point) was not aware that the Kilmore ICC was to become the incident control centre nor was he aware that it did becomes the incident control centre at 1.05 pm and, as a result, communicated with the Seymour Group HQ and not the Kilmore ICC.

(xviii) (vi) As a result of the deficiencies referred to in the preceding paragraphs (v), between 11.479 am and 12.401.58 pm, the senior officers and agents of the CFA at the Operation Point, at the Seymour Group HQ and, the Seymour RECC, and the Kilmore ICC, being the persons who at various periods during that time were responsible for ensuring the implementation of effective suppression measures, and those at the Kilmore ICC, who were to assume such responsibility, were delayed and or distracted from adequately considering strategic and tactical decisions for effectively suppressing the Kilmore fire, including:

(A) considering the likely progression of the fire and the key areas of strategic concern, which areas included the Hume and the pPlantations;

(B) considering where and how to deploy resources so as to best protect high risk areas, including, inter alia, ensure that the fire did not enter the Pplantations and become unable to be suppressed;

(C) considering where and how to deploy resources so as to best make use of any areas with low fuel loads and open spacesnatural fire breaks, including, inter alia, the Harrop propertythe Hume;

(D) ensuring that once the first fire fighting applicances had arrived at, and been unable to control the fire, all available additional resources had been requested and paged to respond to the fire and had, in fact, responded to the fire;

(E) considering the best use of support from the SAU;

(F) considering the need for and best use of resources from the DSE, MFB and independent fire units, such as those operated by the owners of the plantations.

(xix) Further the confusion surrounding and progressive changes to the command structure referred to in the preceeding paragraphs impeded the information flowing to and from the Kilmore ICC and thus ability of the IMT at the Kilmore ICC to implement effective suppression measures because:

(A) crucial fire ground information from the Operations Point was communicated to the Seymour Group HQ and not the Kilmore ICC;

(B) there was no coordination of strategy between the Kilmore ICC and the CFA officer commanding the Operations Point;

(C) aircraft from the SAU communicated directly with the Operations Point, the Seymour RECC or the Seymour Group HQ but not the Kilmore ICC;

84

(D) information on aircraft activities was not passed on to the Kilmore ICC subsequently;

(E) fire situation maps and prediction maps generated and available to the CFA were not made available to the Kilmore ICC.

(xx) The CFA knew or ought to have known due to the location of the fire start, the geography of the area and the wind conditions on 7 February 2009, that the Kilmore fire would burn in a south and south-east direction, being the direction of the plantations and the point of the Hume at which the Kilmore fire ultimately did cross the Hume.

(xxi) Further, information from CFA officers in the field confirmed that the Kilmore fire was heading in a south to south east direction.

(xxii) Further, a linescan of the fire was taken at 12.46pm and again at 12.55pm. These were available to the CFA shortly thereafter. Two infrared line scanning aircraft were available on 7 February 2009 but the CFA requested only one for use.

(xxiii) As a result of the matters referred to in the proceeding three paragraphs, the CFA was aware that the fire was heading south-southeast and that there was a risk that the fire would approach the plantations and, thereafter, the Hume and possibly cross it. At around 12.45pm a request was made to VicRoads to close the Hume.

(xxiv) The CFA did not implement a timely, adequate or effective first attack strategy on the Kilmore fire.

(xxv) No resources or, alternatively, inadequate resources were tasked with preventing the Kilmore fire entering the plantations and or suppressing any fire which did enter the plantations and or mitigating against the intensity of any fire which entered the plantations.

(xxvi) No resources or, alternatively, inadequate resources were tasked with preventing the Kilmore fire crossing the Hume and or suppressing any fire which did cross the Hume and or mitigating against the intensity of any fire which crossed the Hume.

(xxvii) Despite the wind direction and the strategies set out in the document entitled Incident Pre-Plans for Kilmore Response Zones for responding to a fire in the Kilmore 4 zone:

(A) no adequate resources, were deployed to Wandong to perform flanking and or strategic fire break operations; and

(B) air support was not requested to protect plantations.

(xxviii) During the period before the fire crossed the Hume, the CFA should have ensured and failed to ensure that all available fire fighting units within the:

(A) Northern Highway Group and the Seymour Group of fire brigades; and/or

(B) Regions 2, 12, 13 and 14 of the CFA,

attended the Kilmore fire.

(xxix) In so far as the CFA requested brigades, strike teams and air support to attend the Kilmore fire during the period before the fire crossed the Hume, it:

(A) did not process these requests in a timely fashion;

(B) did not ensure that adequate resources in fact responded to the Kilmore fire;

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(C) did not coordinate the responding brigades and air support to engage or engage adequately in first attack.

(xxx) During the afternoon of 7 February 2009, DSE resources were being employed principally on the Murrindindi fire. The CFA did not call on the resources of the DSE until 3pm on 7 February 2009, that is, until after the fire had crossed the Hume, when DSE fire crews were dispatched from Toolangi and who it was estimated would arrive at the fire at 3.30pm. The initial DSE attack on the fire involved only six personnel, one tanker and two ‘slip-on’ vehicles, together with one ‘first attack’ dozer.

(xxxi) The CFA did not call on the resources of the MFB until 1.52pm on 7 February 2009 when an MFB strike team was paged, that strike team undertaking asset protection work only in O’Grady’s Road and the Wandong sector of the fire, and then only to a limited extent when further resources were available and should have been called on. The MFB resources were stationed in Melbourne and were readily available and should have been called on to the maximum extent available.

(xxxii) The CFA did not adequately call on the resources of the SAU. Across the State of Victoria on 7 February 2009, fire bombing from aircraft totalled 190.21 hours yet the Kilmore fire received fire bombing for a total of only 4.23 hours. Further, the CFA did not consider using, alternatively failed to use, the SAU:

(A) as part of a first attack strategy;

(B) to assist in preventing fire from entering and or suppressing fire within the plantations;

(C) to assist in prevent fire from crossing and or suppressing fire that crossed the Hume;

(D) to apply retardant to vegetated areas around the Hume to increase the effectiveness of the Hume as a fire break.

(xxxiii) The Kilmore fire ran for a period of approximately 1 hour before it approached and then entered the plantations at or about 12:45pm on 7 February 2009.

(xxxiv) The Kilmore fire ran for a period of approximately 1 hour and 30 minutes before it was some 500 metres from the Hume.

(xxxv) The Kilmore fire ran for a period of approximately 2 hours and 15 minutes before it approached and then crossed the Hume at or about 1.58pm on 7 February 2009.

(xxxvi) After the Kilmore fire crossed the Hume, it was out of control and unable to be suppressed.

141. The CFA should have:

(a) had the Kilmore ICC fully resourced and ready to operate and engage in fire

suppression activities;

(b) implemented a first attack strategy quickly and effectively so as to have enabled and put

the Kilmore fire to have been suppressed, out before it entered the Pplantations thereby

preventing the Kilmore fire from approaching the Hume with the risk that it might not be

86

stopped at that highway and might therefore enter the Forested area and become

uncontrollable became unable to be suppressed;

(c) in the event that a first attack failed, quickly implemented strategies to mitigate the risk

of the fire entering the plantations thereby reducing the risk that fire might not be

stopped at the Hume and might therefore enter the Forested area and become

uncontrollable;

(d) at approximately 12 noon, as soon as it became aware of the seriousness of the Kilmore

fire, called immediately on appropriate all available resources (including both its own,

and those of the DSE) of the CFA, DSE, the MFB and the SAU as soon as it became

aware of the Kilmore fire;

(e) quickly implemented a strategy to use the Hume as a fire break or control line thereby

preventing the Kilmore fire from crossing the highway and entering the Forested Area

and becoming uncontrollable. caused the dispatch of aerial resources to the fire, through

its control, alternatively, capacity to control, further or alternatively, direction of the SAU

and the State Air Desk, very shortly after the request was received by the State Air Desk

by approximately 12.05pm (and, in any event, well within a time frame of the

approximately 17 minutes after the request was received by the State Air Desk).

CFA – causation16

142. The Kilmore fire entered the Pplantations and/or crossed the Hume and thereupon became

uncontrollable and unable to be suppressed by reason of the breach by the CFA of the CFA

Statutory Suppression Duty and/or the CFA Suppression Duty.

143. The Kilmore fire entering the Pplantations and/or crossing the Hume and thereupon becoming

uncontrollable and unable to be suppressed were natural and foreseeable consequences of

the breaches of duty alleged against the CFA in the preceding paragraphs.


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CFA claims – loss and damage17

144. In the alternative to the matters set out in paragraphs 8 to 109 inclusive, in the premises set

out in paragraphs 110 to 143 the breaches by CFA of:


(b) the CFA Suppression Duty;

caused loss and damage to the claimants.

Particulars

(i) The fire suppression measures adopted by the CFA were untimely and ineffective as aforesaid and did not suppress the Kilmore fire either by the first attack strategy or by preventing it entering the Pplantations or by preventing it from crossing the Hume with the effect that the fire entered the Forested Area, became uncontrollableunable to be suppressed, and thereafter spread in and through the Forested Area and affected the Communities and the townships and communities of Heathcote Junction, Wandong, Wallan, Kilmore and Kilmore East.

(ii) But for the breaches of the duties as aforesaid and/or any of them, the Kilmore fire would have been suppressed and the loss and damage suffered by the claimants would have been avoided.

145. By reason of the matters set out in:

(a) the preceding paragraph – CFA is liable for the claimants’ loss and damage; further or

alternatively

(b) (so far as claimants make ELPD claims in an action for damages arising out of a failure

to take reasonable care) paragraph 53D, further or alternatively paragraph 109A, and

the preceding paragraph – CFA together with SPI, UAM and DSE Secretary is together

with one or more other persons a person whose acts or omissions caused the claimants’

loss and damage within the meaning of Part IVAA of the Wrongs Act, and accordingly

liable in proportion to its responsibility.

[There are no paragraphs 146 to 174.]


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SECTION H – FAILURE TO WARN – VICTORIA POLICE (“POLICE”)18

174A. Further and in the alternative to paragraphs 8 to 145 inclusive above, the plaintiff on her own

behalf and on behalf of each of the group members defined in paragraphs 4(aa), (a) or (b)

above (“personal injury claimants”) adopts SPI’s claims against the fifth defendant as

follows.

Bases upon which State is sued

175. The State of Victoria (“the State”):

(a) pursuant to section 23(1)(b) of the Crown Proceedings Act 1958 (Vic) is 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; and

(b) pursuant to section 123(2) of the Police Regulation Act 1958 (Vic) is liable for

anything necessarily or reasonably done or omitted to be done in good faith by a

member of the force as defined in section 3 of the Police Regulation Act 1958 (Vic)

(“Victoria Police”) in the course of his or her duty as a member of the Victoria

Police.


89

Statutory Powers, Functions and Duties of State Servants and Agents

176. At all relevant times, pursuant to section 5 of the Police Regulation Act, the Chief

Commissioner of Police (“the Chief Commissioner”) had the superintendence and control

of the Victoria Police and all officers of police had superintendence and control of that portion

of the Victoria Police which was placed under their charge subject to the authority conferred

upon the Chief Commissioner.

177. At all relevant times, pursuant to section 6 of the Police Regulation Act, anything which the

Chief Commissioner was authorised or required to do could be done by a Deputy

Commissioner.

178. At all relevant times, the Emergency Management Act 1986 (Vic) (“the EMA”) was in force in

Victoria and, pursuant to section 4A of the EMA, the objectives of the EMA were ensuring

that the following components of emergency management (defined in section 4 as the

organisation and management of resources for dealing with all aspects of emergencies)

were organised within a structure which facilitated planning, preparedness, operational

co-ordination and community participation:

(a) prevention, being the elimination or reduction of the incidence or severity of

emergences and the mitigation of their effects; and

(b) response, being the combating of emergencies and the provision of rescue and

immediate relief services.

179. At all relevant times, section 4 of the EMA defined an “emergency” as an emergency due to

the actual or imminent occurrence of an event which in any way endangered or threatened to

endanger the safety or health of any person in Victoria or which destroyed or damaged, or

threatened to destroy or damage, any property in Victoria or endangered or threatened to

endanger the environment or an element of the environment in Victoria, including a fire.

90

180. At all relevant times, pursuant to section 5 of the EMA, the Minister for Police and

Emergency Services was the Co-ordinator in Chief of Emergency Management for the

purposes of the EMA and was required to appoint a Deputy Co-ordinator in Chief of

Emergency Management who was required to be the Chief Commissioner.

181. At all relevant times, pursuant to section 6 of the EMA, the role of the Co-ordinator in Chief

was to ensure that adequate emergency management measures were taken by government

agencies and co-ordinate the activities of government agencies carrying out their statutory

functions, powers, duties and responsibilities in taking such measures.

182. At all relevant times, pursuant to section 4 of the EMA, “emergency management” meant the

organisation and management of resources for dealing with all aspects of emergencies.

183. At all relevant times, pursuant to section 10(1) of the EMA, the Co-ordinator in Chief was

required to arrange for the preparation and review from time to time of a state emergency

response plan, to be called DISPLAN, for the co-ordinated response to emergencies by all

agencies having roles or responsibilities in relation to the response to emergencies.

184. At all relevant times, pursuant to section 11 of the EMA:

(a) the State Co-ordinator of DISPLAN (“the State Co-ordinator”) was to be the Chief

Commissioner who was to be responsible under DISPLAN for the co-ordination of

the activities of agencies having roles or responsibilities in relation to the response to

emergencies; and

(b) the State Co-ordinator was required to appoint a member of Victoria Police to be a

Deputy State Co-ordinator of DISPLAN to assist the State Co-ordinator (“the Deputy

Co-ordinator”).

91

185. At all material times, pursuant to section 13 of the EMA, the State Co-ordinator was required

to appoint a member of Victoria Police to be a Co-ordinator of DISPLAN for each region and

municipal district.

186. At all material times, pursuant to section 15 of the EMA, DISPLAN was required to contain

provisions:

(a) identifying, in relation to each form of emergency specified, the agency primarily

responsible for responding to the emergency;

(b) relating to the co-ordination of the activities of other agencies in support of a

responsible agency in the event of an emergency;

(c) specifying the roles and responsibilities of co-ordinators appointed under section 13;

and

(d) defining regions for the purposes of section 13.

187. At all material times, pursuant to section 17 of the EMA, as soon as practicable after

DISPLAN was prepared or reviewed, the Co-ordinator in Chief was required to publish

DISPLAN or details of the results of the review (as the case required) in such manner as the

Co-ordinator in Chief determined and to provide a copy of DISPLAN or the results of the

review (as the case required) to every agency to which DISPLAN applied.

188. At all relevant times, the agencies to which DISPLAN applied included the CFA and the DSE,

which government agencies were “agencies” within the meaning of section 4(1) of the EMA.

92

Emergency Management Manual and DISPLAN19

189. In about January 2005 the Minister for Police and Emergency Services in his capacity as

Co-ordinator in Chief of Emergency Management published the Emergency Management

Manual of the State of Victoria (“the EM Manual”).

190. Part 3 of the EM Manual comprised DISPLAN and was published pursuant to section 10 of

the EMA.

191. Pursuant to DISPLAN, each of the emergency response co-ordinators referred to in

DISPLAN (which included those appointees required under section 13 of the EMA)

(“Emergency Response Co-ordinators”) were responsible for ensuring the co-ordination of

the activities of agencies having roles or responsibilities in response to emergencies,

including the CFA and the DSE.

Particulars

EM Manual Page 3-5.

192. Pursuant to DISPLAN, each of the Emergency Response Co-ordinators had principal roles

which included ensuring that consideration was given to alerting the public to existing and

potential dangers arising from a serious emergency directly or through the media.

Particulars

EM Manual, Page 3-5.

193. Pursuant to DISPLAN, Emergency Response Co-ordinators included field emergency

response co-ordinators (“field ERC”) who were usually the senior members of Victoria Police

at the scene of an emergency.

Particulars



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194. Pursuant to DISPLAN, the roles, responsibilities and duties of each field ERC included

ensuring that consideration had been given to alerting the public to existing and potential

dangers arising from a serious emergency, the need for evacuation and public information.

Particulars


195. Pursuant to DISPLAN, Emergency Response Co-ordinators included a municipal emergency

response co-ordinator (“MERC”) appointed by the State Co-ordinator for each municipal

district.

Particulars


196. Pursuant to DISPLAN, Emergency Response Co-ordinators included a divisional emergency

response co-ordinator (“DERC”), being a commissioned officer of police appointed by the

State Co-ordinator for each municipal district.

Particulars


197. Pursuant to DISPLAN, the roles, responsibilities and duties of each MERC included

obtaining and forwarding regular advice to the DERC regarding the potential of an

emergency which was not under substantial control by the relevant control agency.

Particulars


198. Pursuant to DISPLAN, the roles, responsibilities and duties of each DERC included to obtain

and forward regular advice regarding the potential of an emergency which was not under

substantial control by the relevant control agency and to ensure that consideration was given

to alerting the public to existing and potential dangers arising from a serious emergency, the

need for evacuation and other public information.

Particulars


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199. Pursuant to DISPLAN, each Emergency Response Co-ordinator was required, in order to

ensure that their role was properly performed, to consider objectives which included bringing

relevant matters to the notice of appropriate agencies for action.

Particulars


200. Pursuant to DISPLAN, State Emergency Response Co-ordination Centres (“SERCC”),

Divisional Emergency Response Co-ordination Centres (“DERCC”) and Municipal

Emergency Response Co-ordination Centres (“MERCC”) were to be the locations at which

Emergency Response Co-ordinators received, collated and disseminated intelligence and

co-ordinated the provision of resources and conducted operations ancillary to an emergency

operations centre.

Particulars


201. Pursuant to DISPLAN, SERCC was responsible for information collection, analysis of and

dissemination of intelligence to emergency response agencies and dissemination of

information to the media and general public.

Particulars


202. Pursuant to DISPLAN:

(a) warnings were required to be issued where community action was necessary to

protect lives, property or the environment;

(b) upon the request of a control agency to issue a warning it was the responsibility of an

Emergency Response Co-ordinator to ensure that a warning was issued both to

agencies and to the potentially affected community;

(c) the content and format of the warning was required to be simple, arresting, brief,

suited to the needs of the affected community and be worded in accordance with

advice from the control agency;

95

(d) warning methods could include loud hailers, telephones, door knocks, radio or

television announcements or local community networks;

(e) for emergencies of major community significance, the warning should be authorised

by an Emergency Response Co-ordinator in consultation with the control agency.

Particulars


203. Pursuant to DISPLAN, the principles required to be kept in mind by Emergency Response

Co-ordinators when managing the flow of information to participating agencies, person

affected and the wider community during emergency response activities were:

(a) get information to the people who need it;

(b) get the right information to the right people; and

(c) make sure the information is timely, user-friendly, accurate, compatible and useful.

Particulars


204. In accordance with section 15 of the EMA, Parts 7 and 8 of the EM Manual specified the

agencies primarily responsible for responding to specified emergencies, provided for the

co-ordination of agencies’ activities in support of responsible agencies and specified the

roles of agencies in the emergency response.

205. Pursuant to Part 7 of the EM Manual:

(a) a “control agency” was an agency identified in a table therein that was assigned to

control the response activities to a specified type of emergency and a “support

agency” was an agency which was to provide essential services, personnel or

material to assist a control agency or affected persons;

(b) in respect of fire, the identified control agencies included the CFA and the DSE;

(c) in addition to control agencies and support agencies there were a range of generic

support services for responses to emergencies identified in a table therein which also

identified the agency to which each support service was assigned;

96

(d) the primary agency assigned responsibility for the “public warnings” support service

was Victoria Police;

(e) Victoria Police was identified as the agency responsible for the effective co-ordination

of resources or services in response to emergencies, the provision of media

co-ordination where no other facility existed and the provision of support to other

agencies in dissemination of public information.

Particulars

EM Manual, Page 7-4; 7-72.

Relevant servants and agents of the State20

205A. On 7 February 2009 the State Co-ordinator, pursuant to section 11 of the EMA, was the

Chief Commissioner of Police, Christine Nixon.

205B. On 7 February 2009 the Deputy Co-ordinators appointed by the State Co-ordinator pursuant

to section 11(2) of the EMA, were the members of Victoria Police for the time being holding,

acting in or performing the duties of the Deputy Commissioner of Police.

Particulars

Instrument of Appointment of Deputy State Co-ordinators of DISPLAN dated 1 August 2005. A copy of the instrument is in the possession of the plaintiff’s solicitors and bears the 2009 Victorian Bushfires Royal Commission document identification number VPO.001.081.0095.

205C. On 7 February 2009 the member of Victoria Police holding, acting in and performing the

duties of Deputy Commissioner of Police and who was, accordingly, the Deputy Co-ordinator

was Kieran Walshe, Deputy Commissioner of Police.

Particulars

Deputy Commissioner Walshe was appointed by Order in Council from 2 July 2006 until 1 July 2009. A copy of the Order in Council is in the possession of the plaintiff’s solicitors and bears the 2009 Victorian Bushfires Royal Commission document identification number VPO.001.081.0127.

20 SP Ausnet Defence pleading, paragraphs 477A478ff

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205D. By 7 February 2009, all of the powers and functions vested in the State Co-ordinator under

the EMA had, pursuant to section 12 of the EMA, been delegated to, and were exercisable

by, the Deputy Co-ordinator.

Particulars

Instrument of Delegation dated 1 August 2005. A copy of the instrument is in the possession of the plaintiff’s solicitors and bears the 2009 Victorian Bushfires Royal Commission document identification number VPO.001.081.0096.

205E. On 7 February 2009, Stephen Fontana, Assistant Commissioner, Counter Terrorism Co-

ordination and Emergency Management Department, was the member of Victoria Police:

(a) acting in or performing the duties of Deputy Commissioner of Police together with

Kieran Walshe and was, accordingly, Deputy Co-ordinator; and/or

(b) who assumed and performed the duties and responsibilities of the State Co-ordinator

under the EM Manual, which duties and responsibilities had purportedly been

informally delegated to him.

205F. In the premises, on 7 February 2009, the members of Victoria Police responsible for

exercising the powers and functions of:

(a) the State Co-ordinator under the EMA and the EM Manual were:

(i) Commissioner of Police, Christine Nixon;

(ii) Deputy Commissioner of Police, Kieran Walshe; and

(iii) Assistant Commissioner of Police, Stephen Fontana;

(b) the Deputy Co-ordinator under the EMA and the EM Manual were:

(i) Deputy Commissioner of Police, Kieran Walshe; and

(ii) Assistant Commissioner of Police, Stephen Fontana.

Hereafter, any reference to “State Co-ordinator” or “Deputy Co-ordinator” is a reference to

the persons exercising the responsibilities of those positions on 7 February 2009.

98

205G. On 7 February 2009 senior members of the Victoria Police were assigned, or assumed

responsibility for discharging, the responsibilities, duties and functions imposed upon the

SERCC under the EM Manual including:

(a) the responsibility referred to in paragraph 201 above for information collection,

analysis and dissemination of intelligence to emergency response agencies and

dissemination of information to the media and general public; and

(b) the responsibility referred to in paragraph 193 above of ensuring that consideration

was given to alerting the public to existing and potential dangers arising from a

serious emergency directly or through the media.

(“the SER personnel”).

Particulars

The SER personnel were:

(a) Superintendent Rod Collins, the State Emergency Response Officer with responsibility for the State Emergency Response Co-ordination Unit within Victoria Police. He was the senior Victoria Police liaison officer in the Integrated Emergency Co-ordination Centre established at Nicholson Street, Melbourne, Victoria (“IECC”) on 7 February 2009 until about 5pm when he moved to the SERCC. Superintendent Collins in that capacity co-ordinated and chaired most of the meetings of the State Emergency Strategy Team, which took place at 9am, 11am, 1pm, 2pm, 3pm, 5pm, 7pm, and 8pm. Although in attendance at the IECC through most of 7 February 2009, Superintendent Collins maintained functional control of the SERCC.

(b) Superintendent Ross McNeil, the acting Chair of the Emergency Management Joint Public Information Committee, who was in attendance at the IECC throughout most of 7 February 2009 and was responsible for monitoring information provided to the public by agencies with responsibilities under the EM Manual.

(c) Inspector Doug Hocking, the Deputy State Emergency Response Officer on 7 February 2009. Inspector Hocking assumed management of the SERCC under the ultimate control and supervision of Superintendent Collins, who was primarily in the IECC.

(d) Inspector Bruce Knight who was in attendance at the IECC from about 3pm and formally took over the responsibilities of Superintendent Collins at about 5pm.

99

206. On 7 February 2009 the members of Victoria Police with responsibilities, functions and duties

under the EM Manual referred to above in relation to the area over which the Kilmore fire

spread (“the Kilmore fire area”) were:

(a) the DERC for the Seymour division;

(b) the MERC for each municipal district within the Seymour division which included any

of the Kilmore fire area;

(c) each field ERC stationed within the Kilmore fire area;

(collectively “the Kilmore Fire Emergency Response Co-ordinators”).

Particulars

(a) The DERC for the Seymour division was Peter Billing.

(b) The MERCs for each municipal district within the Seymour division which included any of the Kilmore fire area were:

(i) Vin Butera (Yarra Glen MECC);

(ii) Tony Higgins (Whittlesea MECC);

(iii) Brett Murphy (Mitchell Shire MECC);

(iv) John Scully (Nillumbik MECC);

(v) David Rowles (Murrindindi MECC).

(c) The field ERC’s stationed within the Kilmore fire area included Wayne Spence.

The identities of each of these persons will be particularised following discovery.

Reasonable foreseeability21

207. Further, prior to on or about 7 February 2009 the State Co-ordinator, the Deputy

Co-ordinator, the SER personnel and the Kilmore Fire Emergency Response Co-ordinators

each knew or ought to have known that fire agencies (the CFA and DSE) had made key

announcements about the high risk faced by Victoria for the 2008-9 fire season and had

advised on 5 and 6 February 2009 that Victoria was at a very serious risk of wildfire

breakouts over the coming days.


100

Particulars

The announcements included the following:

(i) On 27 October 2008 the Premier, the Minister for Police and Emergency Services, and the Chief Fire Officers of each of the CFA, the DSE and the Metropolitan Fire and Services Board announced the beginning of the 2008-9 fire season, emphasising the need for preparedness, the significant investment of the State in fire response, and the high risk outlook for the 2008-9 fire season.

(ii) Further announcements in the week leading up to 7 February 2009 including a prediction for 7 February 2009 that the landscape was pre-disposed to a catastrophic event.

208. Further, at all material times, the State Co-ordinator, the Deputy Co-ordinator, the SER

personnel and the Kilmore Fire Emergency Response Co-ordinators knew or ought to have

known that specific warnings provided and referring to specific groups and/or communities

and/or localities and/or local residents in areas threatened by bushfires, rather than

generalised warnings addressed and referring to the general public, were necessary to

enable persons in those areas to take steps to avoid the risk of personal injury and death.

209. Further, at all material times, the State Co-ordinator, the Deputy Co-ordinator, the SER


known that a large proportion of the area south and to the east of Kilmore East contained

areas in which persons lived adjacent or proximate to the Forested Area.

210. Further, at all relevant times the State Co-ordinator, the Deputy Co-ordinator, the SER


known that:

(a) if a fire started in the region of Kilmore East, with northerly and/or north westerly

winds and high temperatures the fire might head south or south east quickly and

spread over a wide geographic area, depending on, inter alia, wind speed and

direction and any changes in wind direction and velocity, including the area over

which the Kilmore fire area;

(b) such fire may cause personal injury and death to persons who were present in the fire

area (“persons at risk”);

101

(c) such personal injury and death to persons at risk could cause personal injury loss and

damage to the claimants (including, but not limited to, persons at risk) (“the personal

injury claimants”);

(d) the risks referred to in paragraphs (a) to (c) (collectively “the Kilmore fire risks”)

were greater during periods of high or extreme bushfire risk.

211. Further, at all relevant times, the State Co-ordinator, the Deputy Co-ordinator, the SER


known that the provision of warnings of the risk that a bushfire might or would be likely to

reach a particular place by a particular time (including within the fire area) was necessary to

enable members of the public endangered by such risk (including persons at risk) to take

steps to avoid the risk so as to avoid personal injury and death.

Particulars

(i) The State Co-ordinator, the Deputy Co-ordinator, the SER personnel and the Kilmore Fire Emergency Response Co-ordinators knew or ought to have known of the establishment by the CFA of the Kilmore ICC prior to 7 February 2009.

(ii) In relation to the wind change risk referred to in paragraph (a) hereof, the State Co-ordinator, the Deputy Co-ordinator, the SER personnel and the Kilmore Fire Emergency Response Co-ordinators knew or ought to have known that wind changes in relation to major bushfires cause substantial risk because the relevant flank of the fire becomes its front after the change. The State Co-ordinator, the Deputy Co-ordinator, the SER personnel and the Kilmore Fire Emergency Response Co-ordinators knew or ought to have known that the impact of wind change on the Victorian bushfires in 1983 was found to be the cause of 46 out of 47 deaths.

(iii) If so warned, the persons at risk would be able to act so as to protect themselves in a timely way in safety including if appropriate, leaving their properties or moving to a safer area.

Vulnerability of Personal Injury Claimants22

212. At all material times the personal injury claimants:


102

(a) had no ability, or no practical and effective ability, to prevent or minimize the Kilmore

fire risks;

(b) were vulnerable to the impact of the Kilmore fire risks; and

(c) consequently, were to a material degree dependent for protection against personal

injury loss and damage upon the State Co-ordinator, the Deputy Co-ordinator, the

SER personnel and the Kilmore Fire Emergency Response Co-ordinators to ensure,

alternatively to take reasonable steps to ensure, that persons at risk would be

provided with bushfire warnings.

Duty of Care23

213. In the premises set out in paragraph 174A, and paragraphs 175 to 212 above, at all material

times, the State Co-ordinator, the Deputy Co-ordinator, the SER personnel and the Kilmore

Fire Emergency Response Co-ordinators owed the personal injury claimants a duty to take

reasonable care to ensure, that bushfire warnings were given to persons at risk so as to

enable the persons at risk to take steps to avoid personal injury loss and damage to

themselves and/or their dependants (“the Victoria Police Duty to Warn”).

Particulars

The warnings required to be given included where appropriate the provision of the following information:

(i) Information as to the source of the fire.

(ii) Information as to the direction of the fire.

(iii) Information as to the spread and speed of the fire.

(iv) Information as to the communities who might or would be likely to impacted by the fire.

(v) Information as to the approximate time (using reasonable estimates) the fire might or would be likely to impact particular communities.

(vi) Information as to the impact if any of any wind change forecast during the relevant run of the fire.

(vii) The unpredictability of the fire as to intensity and/or speed and/or spread.

(viii) Information as to the possible consequences of not heeding the warning.


103

(ix) Information as to what actions persons at risk should take and by when.

Commencement and Progress of the Kilmore East Fire24

214. At approximately 11.45am on 7 February 2009 the Kilmore fire commenced near Saunders

Road, Kilmore East.

215. At all relevant times, the commencement, course and conduct of the Kilmore fire and the

associated weather conditions included the following:

(a) at approximately 1.58pm on 7 February 2009 the Kilmore fire crossed the Hume and

headed in a south easterly direction;

(b) between approximately 2.00pm and 5pm on 7 February 2009, the Kilmore fire created

spot fires ahead of the main head of the fire;

(c) between approximately 2.00pm and 5.00pm on 7 February 2009, the fire front of the

Kilmore fire travelled under the influence of 60-90 kilometre per hour north-westerly

winds, through timber plantations and agricultural land, before entering forest areas;

(d) the Kilmore East fire reached the base of Mount Disappointment at around 3.30pm,

then reached the crest of that Mount;

(e) after 2.00pm on 7 February 2009, communities south and southeast of Kilmore East

were affected by the Kilmore fire and spotting arising therefrom;

(f) the weather conditions on 7 February 2009 were extreme and included strong

north/north-westerly winds and temperatures across much of the State of Victoria in

excess of 40 degrees with low humidity;

(g) during the course of mid to late afternoon a significant wind change occurred across

the State of Victoria with the effect that strong winds which had been travelling from a

north westerly direction travelled from a south westerly direction;


104

(h) the wind change referred to in the preceding sub-paragraph impacted the Kilmore fire

in the Kinglake region in the late afternoon of 7 February 2009 at around 5.45pm

affecting Communities including Kinglake West, Pheasant Creek, Kinglake Central,

Flowerdale, Hazeldene and Clonbinane.

Breach of Duty25

216. At all relevant times, the State Co-ordinator, the Deputy Co-ordinator, the SER personnel

and the Kilmore Fire Emergency Response Co-ordinators knew or ought to have known of

the matters in paragraphs 207 to 211 hereof, or their likelihood of occurring, by virtue of

information available from the CFA and/or the DSE, information available at each relevant

MERCC, DERCC, the SERCC, and from the information available at the IECCIntegrated

Emergency Co-Ordination Centre established at Nicholson Street, Melbourne, Victoria

(IECC).

Particulars

Such information included the specific information and predictions being collected, made and analysed by the CFA and the DSE in relation to the Kilmore fire, its path, its spread and its speed, during the course of the afternoon of 7 February 2009 and thereafter, including the information and predictions referred to in paragraphs 235 and 273 below as collected and made by the CFA and the DSE.

217. Before and on 7 February 2009 the State Co-ordinator, the Deputy Co-ordinator, the SER

personnel and the Kilmore Fire Emergency Response Co-ordinators breached the Victoria

Police Duty to Warn in that they failed to take reasonable care to ensure that bushfire

warnings were given to persons at risk so as to enable the persons at risk to take steps to

avoid personal injury loss and damage to themselves and/or their dependants by reason of

the Kilmore fire.

Particulars

(a) Failing to disseminate or cause to be disseminated to persons at risk any information, advice or warning of the kind required as set out in the particulars to paragraph 213. including failing to disseminate or cause to be disseminated any


105

Fire Information Releases in respect of the following towns in which persons perished in the Kilmore fire:

(i) St Andrews, Strathewen or Steels Creek;

(ii) Upper Plenty, Kinglake West or Toolangi, until after the fire had impacted upon each of those towns;

(iii) Arthurs Creek, Humevale or Kinglake, until shortly before the fire impacted upon each of those towns.

(b) Failing to disseminate or cause to be disseminated to persons at risk any information, advice or warning that the Kilmore fire would be affected by the wind change forecast to occur mid to late afternoon on 7 February 2009 and this would place communities east of the fire front at serious risk of personal injury or death.

(c) Failing to disseminate or cause to be disseminated to persons at risk any information, advice or warning that the Kilmore fire had crossed the Hume at just before 2.00pm or thereabouts, and was thereafter out of control and was spotting many kilometres ahead of the fire front.

(d) Failing to co-ordinate and supervise the activities of the CFA and/or the DSE so as to ensure that those agencies disseminated or caused to be disseminated to persons at risk the information, advice or warnings referred to in paragraphs (a)-(c) above.

Causation and damage26

218. Further and in the alternative to paragraphs 8 to 145 inclusive above, by reason of the

breaches by the State Co-ordinator, the Deputy Co-ordinator, the SER personnel and the

Kilmore Fire Emergency Response Co-ordinators of the Victoria Police Duty to Warn during

the Kilmore fire the personal injury claimants suffered personal injury loss or damage.

Particulars

But for the breaches of duty referred to above, the persons at risk would have taken steps to avoid injury or death.

The plaintiff refers to and repeats the particulars of causation set out in the Particulars of Plaintiff’s Warnings dated 2 May 2012. Particulars regarding the causation of personal injuries relevant to the claims of sample group members were served on the defendants by letter dated 27 April 2012. Particulars of causation in respect of a sample personal injury claimant will be provided prior to the trial of common questions in accordance with directions given by the Court.

Particulars of causation in respect of other personal injury claimants will be given following the trial of common questions or otherwise as the Court may direct.


106

219. The personal injury loss and damage was a natural and foreseeable consequence of the

breaches of the Victoria Police Duty to Warn alleged against the State Co-ordinator, the

Deputy Co-ordinator, the SER personnel and the Kilmore Fire Emergency Response

Co-ordinators.

Duties not delegated27

220. Further:

(a) the statutory and/or common law duties of the CFA in relation to warnings to the

public as referred to below; and/or

(b) the common law duties of the DSE in relation to warnings to the public as referred to

below; and/or

(c) the agreement reached between Victoria Police, CFA and DSE as referred to below

that CFA and/or the DSE would in lieu of the Victoria Police undertake warnings to the

public about bushfire risk;

did not abrogate, discharge or delegate the responsibilities of the State Co-ordinator, the

Deputy Co-ordinator, the SER personnel and the Kilmore Fire Emergency Response

Co-ordinators pursuant to the Victoria Police Duty to Warn.:

221. In the premises, at all relevant times the State Co-ordinator, the Deputy Co-ordinator, the

SER personnel and the Kilmore Fire Emergency Response Co-ordinators remained liable to

the personal injury claimants irrespective of the acts or omissions of CFA and/or DSE as

alleged in paragraphs 226 and following below.


107

Liability of State28

222. In the premises set out in paragraphs 174A to 221 above, the State is liable for the negligent

acts and omissions of the State Co-ordinator, the Deputy Co-ordinator, the SER personnel

and each of the Kilmore East Fire Emergency Response Co-ordinators alleged above

pursuant to:

(a) section 23(1)(b) of the Crown Proceedings Act 1958 (Vic);

(b) section 123(2) of the Police Regulation Act 1958 (Vic).

[There are no paragraphs 223 to 225 inclusive.]

SECTION I – FAILURE TO WARN – CFA29

First CFA duties

First CFA statutory duty to personal injury claimants

226. Further and in the alternative to paragraphs 8 to 222 inclusive above, at all relevant times the

CFA was established for the more effective control of the prevention and suppression of fires

in the country area of Victoria.

Particulars

Sub-section 6(1) of the CFA Act.

227. At all relevant times, it was the responsibility of the CFA to provide factual and timely advice

and information to members of the Victoria Police with responsibilities in respect of bushfire,

28 SP Ausnet Defence pleading, paragraphs 494ff. 29 SP Ausnet Defence pleading, paragraphs 498ff.

108

namely the State Co-ordinator, the Deputy Co-ordinator, the SER personnel and the

Emergency Response Co-ordinators, so as to enable those members of the Victoria Police to

issue or cause to be issued warnings to the public in relation to bushfires for the protection of

life and property in accordance with DISPLAN and/or the EM Manual (the First CFA statutory

warnings duty).

Particulars

Part 8, page 20 within Appendix 5 of the EM Manual.

228. The First CFA statutory warnings duty was owed by the CFA to the personal injury claimants.

Particulars

The object of protecting the persons at risk is to be inferred from a proper construction of the EM Manual.

First CFA common law duty to the personal injury claimants30

229. Further, at all relevant times, the CFA was aware or ought to have been aware of:

(a) the duties owed by the State Co-ordinator, the Deputy Co-ordinator, the SER personnel

and Kilmore Fire Emergency Response Co-ordinators to the personal injury claimants;

(b) the dependency of the State Co-ordinator, the Deputy Co-ordinator, the SER personnel

and Kilmore Fire Emergency Response Co-ordinators in giving bushfire warnings on the

CFA complying with the EM Manual.

Particulars

At all material times the CFA was aware of the terms of DISPLAN and the EM Manual.

230. Further, at all relevant times the Kilmore fire risks were reasonably foreseeable to the CFA.

Particulars

(i) Prior to 7 February 2009, the CFA established a CFA Incident Control Centre at Kilmore.


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(ii) The plaintiff refers to and repeats the particulars sub-joined to paragraph 139.

(iii) In relation to the wind change risk within the Kilmore fire risks, the CFA knew or ought to have known that wind changes in relation to major bushfires cause substantial risk because the relevant flank of the fire becomes its front after the change. The CFA knew or ought to have known that the impact of wind change on the Victorian bushfires in 1983 was found to be the cause of 46 out of 47 deaths.

231. Further, at all relevant times, the CFA knew or ought to have known that if the State Co-

ordinator, the Deputy Co-ordinator, the SER personnel and/or Kilmore Fire Emergency

Response Co-ordinators gave or caused to be given bushfire warnings to the public, the public

would be likely to regard those warnings and their content as a principal source of information

on which to act in order to protect themselves from the risk or danger of a bushfire.


(a) had no ability, or no practical and effective ability, to prevent or minimize the Kilmore fire

risks;

(b) were vulnerable to the impact of the Kilmore fire risks;


injury loss and damage upon the CFA to ensure, alternatively to take reasonable steps

to ensure, that the CFA would provide factual and timely advice and information to the

State Co-ordinator, the Deputy Co-ordinator, the SER personnel and/or Kilmore Fire

Emergency Response Co-ordinators to enable those members of Victoria Police to

provide or cause to be provided bushfire warnings to persons at risk.

233. At all relevant times, the CFA knew or ought reasonably to have known that if it provided

factual and timely advice and information about a bushfire to the State Co-ordinator, the

Deputy Co-ordinator, the SER personnel and/or Kilmore Fire Emergency Response Co-

ordinators, this would enable those members of the Victoria Police to provide or cause to be

provided bushfire warnings of the risk that a bushfire might or would be likely to reach a

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particular place by a particular time and would thereby enable persons at risk to take steps to

avoid personal injury or death.

Particulars

If so warned, persons at risk would be able to protect themselves in a timely way in safety including if appropriate, leaving their properties or moving to a safer area.

234. In the premises, at all material times, the CFA owed to the personal injury claimants a duty:



engaged by it,

to ensure, alternatively to take reasonable steps to ensure, that the State Co-ordinator, the


ordinators were provided with factual and timely advice and information to enable those

members of the Victoria Police to provide or cause to be provided bushfire warnings to

persons at risk of the risk that a bushfire might or would be likely to arrive at a particular

place by a particular time so as to enable persons at risk to take steps to avoid personal

injury and death (the First CFA common law warnings duty).

235. The CFA was required by:

(a) the First CFA statutory warnings duty; and/or

(b) the First CFA common law warnings duty,

to provide factual and timely advice and information to the State Co-ordinator, the Deputy Co-

ordinator, the SER personnel and/or Kilmore Fire Emergency Response Co-ordinators so that

those members of the Victoria Police could provide or cause to be provided bushfire warnings

to persons at risk that a bushfire might or 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 or death.

Particulars

The factual and timely advice and information required to be given to the State Co-ordinator, the Deputy Co-ordinator, the SER personnel and/or Kilmore Fire Emergency Response Co-ordinators included advice which would enable those members of the Victoria Police to issue or cause to be provided timely and adequate warnings containing, depending on the particular fire circumstances and

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risk, where appropriate the provision of the following or parts of the following information to the public:










Breach of “first” CFA duties to personal injury claimants31

236. At all relevant times during the afternoon of 7 February 2009, the CFA was aware of the likely

direction, path, and spread of the Kilmore fire, taking into account the weather conditions

including the temperature and prevailing wind direction and the impending wind change.

Particulars

(i) The Kilmore fire was reported to the CFA at 11.49am. The fire was observed at the Pretty Sally Tower at 11.47am as developing quickly.

(ii) The State Fire Emergency Coordination Plan of 3-6 February 2009 provided a risk management assessment and strategies for the next four days in response to the extreme weather forecasted to occur, and identified the high risk area in the arc from the Otways, Macedon, Kinglake, Marysville, to the Dandenong Ranges.

(iii) At 12.55pm on 7 February 2009, the CFA produced within the IECC an electronic map of the estimated fire location for the Kilmore fire. The map was produced from the CFA Emergency Information Management System. A copy of the map is available for inspection at the offices of the plaintiff’s solicitors by appointment.

(iv) At or about 1.00pm on 7 February 2009, the CFA had in its possession two linescans of the Kilmore fire taken from an aircraft between approximately 12.46-12.49pm and 12.55-12.58pm.

(v) The line scans indicated spot fires ahead of the fire.


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(vi) The CFA was aware that DSE (through the State Air Desk) despatched a spotter aircraft (Fire Spotter 381) and two fire bombing aircraft involved in the Kilmore fire attack, with all aircraft working over the fire by 12.53pm, and with the observational aircraft tasked with observing and reporting on the movement of the fire. The CFA relied on information from that Fire Spotter aircraft.

(vii) The Chief Fire Officer of the CFA, Russell Rees, knew that if the fire crossed the Hume and got into Mount Disappointment, the fire would be uncontrollable and would impact on communities and populated areas.

(viii) Between 1.30pm and 2.40pm predictions were being made by CFA personnel at the CFA Kangaroo Ground ICC that Kinglake and surrounding regions were at risk from the Kilmore fire.

(ix) At or around 2.28pm on 7 February 2009, the CFA State Co-ordinator at the IECC, Mr G Conway, knew that the priority areas for the Kilmore fire were Whittlesea, Hurstbridge and Kinglake.

(x) At or about 3.10pm, personnel at the Kilmore ICC were briefed that the eastern flank of the fire posed risks and that the CFA should plan for the wind change expected to occur later in the afternoon.

(xi) At all relevant times the CFA knew that after the wind change the eastern flank of the fire would become its head and therefore the potential of the fire to cause loss and damage would be significantly increased.

(xii) Between about 3.11pm and 3.30pm on 7 February 2009, fire behaviour analysts in the IECC produced a hand drawn prediction map of the Kilmore fire which was made available to the CFA shortly thereafter. The map was provided to the CFA (and DSE) State Duty Officers. The map incorporated information from the aircraft surveillance unit at 3.30pm that the fire was spreading faster than anticipated. The prediction map indicated that the fire potentially spreading to Hurstbridge and close to Kinglake, with spotting extending considerably further as far as Flowerdale and Toolangi. Spotting was identified over tens of kilometres.

(xiii) By 3.30pm, the Chief Fire Officer of the CFA had formed the view that there was very heavy spotting a long way ahead of the head of the fire, into the Strathewen area.

(xiv) At 3.55pm a satellite image was made available within the IECC, showing a clear alignment between the fire and smoke plumes and the approaching cold front/wind change.

(xv) At 4.00pm personnel at the Kangaroo Ground ICC received a CFA map from the IECC (time stamped 3.10pm) which predicted that the Kilmore fire would reach Kinglake.

(xvi) At 4.00pm personnel at the Kangaroo Ground ICC made an entry in the Kangaroo Ground ICC log book that stated that Kinglake needed to receive a threat message as soon as possible.

(xvii) The further version of the prediction map was prepared at around 4.15pm and distributed within the IECC at approximately 4.30pm on 7 February 2009 but was not reproduced in electronic form until 5.43pm. The 4.15pm prediction map took into account a possible wind change assessed to occur at 9.00pm as previously advised by the Bureau of Meteorology (BoM) (see below) but the fire behaviour analysts who prepared the map knew that the wind change had been brought forward to around 6.30pm, that update not being reflected in the map itself but merely being recorded as an assumption in a report produced at the IECC at 4.30pm. Accordingly, as of no later than 4.15pm, the CFA knew that the wind

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change would pass through the Kinglake and surrounding areas at around 6.30pm.

(xviii) Among other things, the line scans referred to above provided the basis for the prediction map prepared at 5.43pm of the path of the Kilmore fire which showed the fire would go through the Kinglake region.

(xix) At 4.30pm personnel at the Kangaroo Ground Incident Control Centre received a CFA prepared map of the Kilmore fire and that personnel drew on it predicting the location to where the Kilmore fire would travel.

(xx) By 5.00pm the Chief Fire Officer of the CFA had formed the view that there was spotting at St Andrews, at the bottom end of Yarra Glen, and also at Healesville.

(xxi) At all relevant times during the afternoon of 7 February 2009, the CFA had access to information from fire towers staffed by CFA and/or DSE personnel at Mount Hickey, Strathewen, Mount Gordon, Mount St Leonards, Kangaroo Ground, and Pretty Sally, which informed the CFA of the speed, direction, spread, and extent of the Kilmore fire including its forward spotting into communities. Fire towers around the Kilmore fire during the afternoon of 7 February 2009 had direct knowledge of the intensity and direction of the fire, its heavy forward spotting down to Upper Plenty and Kinglake West, and direct knowledge of the likelihood that by late afternoon the fire would be in the vicinity of the Kinglake West region. From observations made at the Pretty Sally fire tower, as early as 2.12pm the CFA knew that the fire had not only crossed the Hume but was also heading towards the Mount Disappointment and Kinglake West areas. All through the afternoon of 7 February 2009, various fire towers (in particular the Kangaroo Ground fire tower) were reporting spotting into the Kinglake West and surrounding areas. That information matched the mapping prediction as aforesaid as at 3.30pm in relation to the spread of the fire and fire spotting.

(xxii) At all relevant times during the afternoon of 7 February 2009, the CFA had access to information stored on the DSE’s fire management and prediction product called ‘FireWeb’ which was able to and did inform the CFA of the speed, direction, spread, and extent of the Kilmore fire including its forward spotting into communities.

(xxiii) To the CFA’s knowledge, there was a material risk that there would be a wind change which would affect the Kilmore fire causing the eastern flank of the fire to become its front, thereby putting communities east of the fire at substantial risk and danger.

(xxiv) The CFA’s knowledge as aforesaid included a weather briefing given to it within the iECC on 3 February 2009, which included an ‘extended outlook’ forecast identified for 7 February 2009 as a day of particular concern. The briefing note stated that ‘the cold front developing in the Southern Ocean will catch up (sic) will impact on the western half (of) the State during the afternoon. Ahead of the frontal passage strong hot dry north-westerly winds will impact on the State, including the east, with central and elevated areas seeing winds above 40km/hr – possibly up to 60-80km/hr, in the morning to early afternoon, before cooler fresh to strong south-westerly winds push through, with scattered showers and thunderstorms behind. Fire danger will be extreme in both forest and grass due to the strong winds, low RH and temps again in the 40s. Timing of the change may vary, so areas impacted the most may differ depending on the change timing.”

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(xxv) In the premises, the CFA had not less than four days advance notice of the likely weather conditions on 7 February 2009 and the likelihood and timing of a change in wind direction.

(xxvi) Further, on Wednesday, 4 February 2009, the CFA was further briefed by BoM about the likely weather conditions, and the wind change, which would occur on 7 February 2009. The briefing described the weather on that day as an ‘Absolute Extreme Fire Weather spike day’ and indicated that the wind change would come through across Melbourne at approximately 5.00pm.

(xxvii) The CFA was further aware of the likely wind change and the timing of it from information provided to it by the BoM from on or about 12.00pm on 7 February 2009. The CFA works in conjunction with the BoM to capture and assess fire weather information, which is provided to the CFA by BoM according to the Australian Government Bureau of Meteorology Fire Weather Directive (January 2006). It was at all material times the practice of the BoM that during a fire season the BoM would provide staffing to operate a routine fire weather forecasting shift, with real time fire weather matters being communicated between the Victorian Severe Weather section of BoM on the one hand, and, inter alia, the State Duty Officers of CFA on the other. At all relevant times, the BoM also administered a registered user web page which provided current data for fire management personnel within the CFA. On days when a significant wind change is being forecast, a wind change chart displaying the current and forecast positions of the change would be and was prepared by the BoM, updated every three hours, and made available electronically to the CFA.

(xxviii) To support the CFA, for the 2007-08 fire season, the BoM had placed a meteorologist in the then emergency co-ordination centre for that fire season, and again in 2008-9 in the IECC, who provided information to the CFA during the afternoon of 7 February 2009 in relation to weather conditions, including wind direction and the likely changes in wind and the timing of such change.

(xxix) Further, during the afternoon of 7 February 2009, the CFA received advice from the South Australian Country Fire Service about weather conditions and the progress of the wind change in South Australia, and the movement of the front was continually monitored by the CFA.

(xxx) In the premises, at all material times after 12.00pm on 7 February 2009, the CFA was aware from information it had received from the BoM and other sources that the predominant north/north-westerly wind blowing across Victoria would swing to become a south-westerly some time between 3.00pm – 6.00pm.

(xxxi) Wind change forecasts were issued to the CFA (within the IECC) at 12.00pm, 1.50pm, 4.30pm, and 6.30pm on 7 February 2009.

(xxxii) At or about 6.00pm, a fire impact zone map was prepared within the IECC and available to the CFA which identified the communities likely to be impacted by the Kilmore fire.

(xxxiii) The potential effect of the south-westerly change on fires was appreciated by the CFA at the IECC including as to the dangers posed by the change to communities. A proposed media release was prepared within the IECC and signed by Russell Rees the then Chief Fire Officer of the CFA at 6.09pm. It referred to erratic winds accompanying the change and the potential for unpredictable fire behaviour. The media release was never released to the public.

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(xxxiv) In the premises, the CFA knew that accurately tracking and monitoring of the fire, forecasting/predicting its movement, and assessing the likely timing of the wind change, was vital in being able to assess the potential impact of the fire and the risk and danger posed by it to persons at risk.




by not providing factual and timely advice and information to the State Co-ordinator, the

Deputy Co-ordinator, the SER personnel and/or the Kilmore Fire Emergency Response Co-

ordinators to enable those members of Victoria Police to issue or cause to be issued bushfire

warnings to persons at risk.

Particulars

The vast majority of the information known to the CFA referred to in the preceding paragraph was not provided by the CFA to the members of Victoria Police at the SERCC or within the IECC in a timely manner or at all. A hand drawn map (derived from the 3.30pm prediction map and prepared at 4.15pm within the IECC) as aforesaid was faxed to the SERCC. Further particulars will be provided before trial.

CFA “first duties” – causation and damage32

238. Further and in the alternative to paragraphs 8 to 222 above, in the premises set out in

paragraphs 226 to 237 inclusive the breaches by CFA of:



during the Kilmore fire caused the personal injury claimants personal injury loss and damage.

Particulars

But for the breaches of the duties as aforesaid and/or any of them, persons at risk would have been provided with timely and adequate warnings and would have taken steps to avoid injury or death.


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239. The personal injury loss and damage resulting from the Kilmore fire was a natural and

foreseeable consequence of the breaches of the duties as aforesaid alleged against the CFA

in the preceding paragraphs.

Second CFA duties

Second CFA statutory duty to the personal injury claimants33

240. Further, at all relevant times, the CFA was under a duty, inter alia, to take superintend and

enforce all necessary steps for the prevention and suppression of fires and for the protection

of life and property in case of fire in the country area of Victoria (the Second CFA statutory

warnings duty).

Particulars

Section 20 of the CFA Act.

241. The Second CFA statutory warnings duty, inter alia, imposed on the CFA an obligation:

(a) to prepare emergency warnings to be given to the public containing relevant information

in a timely, clear and adequate manner;

(b) to disseminate those warnings to those members of the public who needed it where

community action would be necessary to protect lives and property (CFA bushfire

warnings).

Particulars

(i) The obligation arising from the duty as aforesaid is inferred from a proper construction of section 20 of the CFA Act.

(ii) The CFA was obliged to include within the warnings the information referred to in the particulars sub-joined to paragraph 235 hereof.


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242. The Second CFA statutory warnings duty was owed by the CFA to the personal injury

claimants.

Particulars

The object of protecting the personal injury claimants is to be inferred from the proper construction of the CFA Act.

Second CFA common law duty to the personal injury claimants34

243. Further, at all relevant times, the CFA had knowledge and expertise in relation to bushfire risks

and in relation to the need to warn the public of such risks in order to protect the public from

personal injury loss and damage.

Particulars

(i) At all relevant times the CFA was under the Second CFA Statutory Duty.

(ii) In the CFA’s submission to the Victorian Bushfire Inquiry of 2002/03, the CFA stated:

“CFA considers provision of information to the community before and during a major incident as one of its core responsibilities. Research following the Ash Wednesday fires found that residents reported having ‘little or no warning or information about where the fire was, the rate at which it was moving and the predicted wind change’ [Lazarus and Elley 1984: 22]. Krusel and Petris [998] found that twelve of the Ash Wednesday civilian deaths occurred because the victims did not appear to recognise the real threat to their safety in time to implement an effective survival strategy... since the events of Ash Wednesday coronial reports and fire investigations have repeatedly encouraged the development of an information flow strategy that meets community needs to information during wildfire.”

(iii) The CFA was aware that the Report of Inquiry into the 2002-03 Victorian Bushfires (para 23.21) had recommended that the CFA (and DSE) ensure in relation to the provision of information to communities affected by fires that, among other things, incident management teams understood that one of their primary responsibilities was to keep the community informed as to where the fire was, its likely path, what was being done to combat the fire, and any preparations the community should undertake, and that information units were effectively integrated into incident management teams.

(iv) In 2005, the Australasian Fire Authorities Council, of which the CFA is a member, published a position paper on bushfires and community safety which stated that “access to accurate and timely information during periods of high fire danger and fire events is crucial to enable people to make appropriate decisions concerning their safety.”

(v) The CFA was at all relevant times aware of the content of DISPLAN.


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(vi) Further, in or about 2006, the CFA, jointly with the DSE, undertook a review of the effectiveness of information flow to communities and the media during fire incidents, which review recognised, inter alia, the value of providing timely and accurate information to the public during times of crisis, including natural disasters such as fires. The findings of the review are contained in a document entitled “Joint CFA/DSE Review of Effectiveness of Information Flow to Communities and Media During Fire Incidents”, prepared by John Schauble, July 2006. A copy of the report is available for inspection at the offices of the plaintiff’s solicitors by appointment.

244. Further, at all material times, the CFA knew or ought to have known that specific warnings

provided and referring to specific groups and/or communities and/or localities and/or local

residents in areas threatened by bushfire, rather than generalised warnings addressed and

referring to the general public, were necessary to enable people in such areas to take steps to

avoid the risk of personal injury and death.

245. At all material times, CFA knew or ought to have known that a large proportion of the area

south and to the east of Kilmore East contained the Communities.

246. Further, at all relevant times the Kilmore fire risks were reasonably foreseeable to the CFA.

247. Further, the CFA knew that the EM Manual prescribed that the ultimate goal of emergency

management was to ensure a “safer more sustainable community.”

248. Further, at all relevant times, the CFA knew or ought to have known that if the CFA gave CFA

bushfire warnings about the risks and dangers of bushfires (including via its website), the

public would be likely to regard those warnings and their content as a reliable and principal

source of information on which to act in order to protect themselves from risk or danger of

bushfire.



risks;

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injury loss and damage upon the CFA to ensure, alternatively to take reasonable steps

to ensure, that CFA bushfire warnings were issued to persons at risk.

250. Further, at all relevant times, the CFA knew or ought reasonably to have known that CFA

bushfire warnings would enable persons at risk to take steps to avoid personal injury and

death.

Particulars

(i) If so warned, persons at risk would be able to consider acting so as to protect themselves in a timely way in safety including if appropriate, leaving their properties or moving to a safer area.

(ii) If so warned, persons at risk would be able to consider staying and if staying taking protective action to ameliorate the impact of the fire should it arrive and thereby improving the chances of them remaining safe and free from injury and/or death despite the fire’s presence.

251. Further, as at and on 7 February 2009, the CFA assumed responsibility to issue CFA bushfire

warnings.

Particulars

(i) In 2005, the CFA and DSE , amongst other parties, entered into a memorandum of understanding with the Australian Broadcasting Corporation (ABC) Radio pursuant to which the ABC undertook that ABC Radio would broadcast emergency messages as requested by Victoria’s emergency services (including the CFA and DSE) in order to notify listeners that a significant emergency was occurring in their area – the memorandum is in writing and is referred to in Part 7, p10 of the EM Manual.

(ii) In or about 2008, the CFA and DSE sought to establish the IECC for the management of bushfire emergencies.

(iii) The establishment of the IECC was based on an earlier decision to merge the CFA and DSE bushfire operations for the 2008/9 fire season.

(iv) The IECC was initially intended to include the Victoria Police as a further emergency agency but in March 2008 the Victoria Police formally informed the CFA and the DSE that the Police Operation Centre and the SERCC would remain within the Victoria Police Centre.

(v) As a consequence, the Victoria Police’s core operations continued to be conducted within its own headquarters at the SERCC and not within the IECC.

(vi) At all relevant times prior to and on 7 February 2009, the CFA had established a dedicated page on its website on which warnings would be

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posted so as to warn the public of the risk and danger of bushfire. The warnings were to be called, inter alia, ‘awareness’ messages and ‘urgent threat’ messages.

(vii) At all relevant times prior to and on 7 February 2009, the CFA had established a fire prediction programme called CFA Emergency Information Management System to enable it to predict the path of fire for the purposes of, inter alia, being able to warn members of the public of bushfire risk and danger.

(viii) At all relevant times on 7 February 2009, the CFA had access to the expertise of the DSE, including persons retained by the DSE in fire prediction and modelling, for the purposes, inter alia, of predicting the path and spread of fire for the purposes of, inter alia, being able to warn members of the public of bushfire risk and danger.

(ix) At all relevant times prior to and on 7 February 2009, the CFA had established, with the DSE, the Victorian Bushfire Information Line (VBIL). The VBIL was established as a joint initiative of the DSE and CFA and operated from the DSE Customer Service Centre in Ballarat, established to provide one point of contact for the community needing information on bushfire activity in Victoria. The VBIL was a means, inter alia, of the CFA providing information to the public to warn them of bushfire risk and danger. According to a CFA publication, ‘Advice to Community Before and During Wildfire – Guide for CFA Personnel’, the VBIL was set up by the CFA and DSE to provide information to the community before and during bushfires, with VBIL frequently responding to questions from the community about, inter alia, information for people who need to respond to a wild fire. According to the publication, during significant wild fires, CFA will activate the Information Unit within CFA as part of its incident management structure, the Information Unit being responsible for the delivery of accurate and timely messages from the relevant incident management team to the community. Further, according to the publication, the threat messages provided to the community are significantly more detailed than a simple alerting system as they aim to provide information to enable people to make appropriate decisions and respond to the threat more safely. According to the publication, the messages are sent out to the community through the media, with particular emphasis on regional and local radio, with ABC radio being the official broadcaster for Victoria during an emergency, and information also being available through the CFA website. According to the publication, CFA personnel should advise residents to seek information about wild fires through: ABC statewide and regional radio or an appropriate local radio; the CFA public website (www.cfa.vic.gov.au), and VBIL.

(x) Further, on 5 February 2009, the CFA issued a media release (with the DSE) headed ‘Fire Services Warn of Continuing Fire Threat’. In the release, the CFA stated that ‘Important steps to take to avoid the threat of fire include: ... if travelling, listen to ABC Local Radio or community radio station; For bushfire information, check the CFA and DSE websites or call the [VBIL]”. The same message was contained in a further media release published by the CFA on 6 February 2009.

(xi) In the premises, the CFA assumed responsibility for the issue of warnings to the public from the IECC and/or relevant control centres or divisional headquarters about bushfire risk.

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252. By (inter alia) its media releases on 5 and 6 February 2009 the CFA represented to the public

that in order to obtain bushfire information and avoid the threat of bushfires members of the

public should check the CFA website or call the VBIL.

253. The CFA knew and intended that members of the public including members of the public in the

country area of Victoria and persons at risk would rely on the CFA website and the VBIL in

order to obtain bushfire information and avoid the threat of bushfires.

254. In the premises, and having regard to the statutory duties of the CFA as aforesaid, at all

material times, the CFA owed to the personal injury claimants a duty:



engaged by it,

to ensure, alternatively to take reasonable steps to ensure, the issue of CFA bushfire warnings

to persons at risk of the risk that a bushfire might or would reach a particular place by a

particular time so as to enable persons at risk to take steps to avoid personal injury and death

(the Second CFA common law warnings duty).

255. The CFA was required by:

(a) the Second CFA statutory warnings duty; and/or

(b) the Second CFA common law warnings duty,

to issue CFA bushfire warnings to members of the public in the country area of Victoria

including persons at risk of the risk that a bushfire might or would reach a particular place by a

particular time so as to enable persons at risk to take steps to avoid personal injury or death.

Particulars


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CFA breach of “second” duties to personal injury claimants35




by not issuing CFA bushfire warnings to the persons at risk which were timely or adequate.

Particulars

(i) The following warnings were issued by the CFA, but they were untimely, inadequate, and information poor, and did not adequately warn persons at risk of the risks posed to those persons by the Kilmore fire and/or provide any real opportunity for persons at risk to avoid the risks.

(ii) An ‘awareness’ message was posted on the CFA website at or around 12.40pm. The message was prepared at the IECC and advised that the fire was burning in a south-easterly direction and the communities of Kilmore East, Wandong and Clonbinane need to be ‘aware of this fire’. No other advice as to other communities which may be impacted was given. The message was authorised by the CFA State Duty Officer, Mr Patterson.

(iii) Between 12.40pm and 2.25pm, no information was posted to the CFA website concerning the Kilmore fire.

(iv) An ‘alert’ message was posted to the CFA website at or around 2.25pm, stating that the fire was ‘not currently posing a threat to communities, however the communities of Kilmore East, Wandong and Clonbinane need to be aware of this fire.’ The message also noted that the fire had jumped the Hume was and that significant spotting was occurring and that it was impacting on the outskirts of the Wandong township. No other advice as to other communities which may be impacted was given.

(v) An ‘urgent threat’ message was posted on the CFA website at or around 2.40pm. The message advised that the community of Wandong may be directly impacted by the fire imminently. No other advice as to other communities which may be impacted was given.

(vi) At 3.02pm, CFA personnel at the Kangaroo Ground ICC drafted an alert message indicating that the fire could potentially impact on communities as diverse as Kinglake West and Christmas Hills. The alert message drafted at that time demonstrated what could have been achieved by way of information and warning to those who were in the path of the Kilmore fire. The draft alert message was never released.

(vii) An ‘urgent threat’ message was posted on the CFA website at or around 3.05pm. The message advised that the community of Hidden Valley may be directly impacted upon by the fire within 60 minutes. No other advice as to other communities which may be impacted was given.

(viii) Strathewen, which was ultimately destroyed by fire and in which 22 people perished, was not mentioned in any web or radio warnings before fire impacted upon it at around 3.55pmwarning published.


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(ix) An ‘urgent threat’ message was posted on the CFA website at or around 3.53pm. The message advised that the community of Whittlesea may be directly impacted upon by the fire within two hours. No other advice as to other communities which may be impacted was given.

(x) The ‘urgent threat’ message posted on the CFA website at or around 3.05pm referred to above was updated at 4.05pm to include the words ‘urgent threat messages for Wandong, Heathcote Junction and Upper Plenty remain current.’

(xi) At 4.10pm, the CFA prepared another ‘urgent threat message’ which stated, inter alia, that ‘the communities of Clonbinane, Mount Disappointment, Kinglake, Heathcote Junction and Upper Plenty, Hume Vale, Reedy Creek, Strath Creek may be directly impacted upon by the Kilmore fire.

(xii) The 4.10pm message was not posted onto the CFA website.

(xiii) An urgent threat message was posted to the CFA website at or around 4.35pm, referring to a ‘Whittlesea’ fire. The message referred to a fire burning in the Mount Disappointment area in the south easterly direction. The message noted that the communities of Whittlesea, Humevale, Arthurs Creek, Nutfield, Eden Park and Doreen may be directly impacted upon by the fire.

(xiv) At or around 4.39pm, John Haynes of the CFA gave an update on ABC 774 that the Kilmore fire was still burning in a southerly direction, that it was about 1,400 hectares in size, and that the communities of Clonbinane, Mount Disappointment, Kinglake, Heathcote Junction, Upper Plenty, Humevale, Reedy Creek and Strath Creek may be directly impacted. The content of that update was similar to the 4.10pm ‘urgent threat’ message which had not been posted on to the CFA website.

(xv) The 4.10pm message which had not been posted onto the CFA website as aforesaid was read over 774 ABC Radio at 4:43pm by Mr John Haynes, Deputy Chief Officer of the CFA, but was not repeated on ABC radio at any other time.

(xvi) At 5.10pm, ABC Radio again mentioned the Kilmore fire, by the announcer, Steve Martin, who referred to a grass and scrub fire burning four kilometres east of Kilmore, referred to Hidden Valley as the community that may be directly impacted by the fire. Mr Martin also referred to a ‘Whittlesea’ fire when in fact the reference should have been to the Kilmore fire.

(xvia) St Andrews, in which 14 people including the plaintiff’s son perished, was not mentioned in any warning published.

(xvib) Steels Creek, in which 10 people perished, was not mentioned in any warning published.

(xvii) An ‘urgent threat’ message was posted on the CFA website at or around 5.55pm containing an urgent threat warning that the communities in the area of Kinglake to Flowerdale may be directly impacted upon by the fire. Just prior to that, the fire fighters in the Kinglake area were given a ‘red flag’ alert telling them to evacuate the side exposed by the wind change which came through about 5.45pm.

(xviii) Kinglake was first mentioned in a warning posted on the CFA website at 5.55pm (prepared/timed at 5.20pm).

(xix) An ‘urgent threat’ message was posted on the CFA website at 6.45pm (but timed at 5.20pm) containing an urgent threat warning that the communities of Wandong, Wallan, Wallan East, Eden Park and Whittlesea, Humevale,

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Bruce’s Creek, Upper Plenty, Kinglake West, Phesant (sic) Creek, Smith’s Gully, Kinglake, Flowerdale, Glenburn, Hurstbridge may be directly impacted upon by the fire.

(xixa) Toolangi, in which 2 people perished, was not mentioned in any warnings published before the fire impacted upon it at approximately 7.30pm.

(xx) An ‘urgent threat’ message was posted on the CFA website at 8.35pm containing an urgent threat warning that the communities in the area of Kinglake to Flowerdale may be directly impacted upon by the fire.

(xxi) The above information and warnings were not timely and did not accurately reflect the fire information available to the CFA and the predictions the CFA had made, or were aware of, for the path, spread and timing of the movement of the fire during the course of the afternoon of 7 February 2009.

(xxii) From 2.00pm on 7 February 2009, the CFA was aware that the Kilmore fire had crossed the Hume, would shortly enter the Mount Disappointment forests, that it was burning out of control, and that there was a high potential that life and property in communities forward of the path of the fire would be endangered by the fire.

(xxiii) No warnings issued by the CFA concerning the Kilmore fire included information as to the anticipated impact of the south-westerly change on the behaviour and direction of the fire even though in respect of the Bunyip Ridge fire the CFA had issued an ‘alert message’ at 4.14pm about the wind change and provided an ‘urgent threat’ message to various communities in respect of the ‘after change’ period. A further wind change warning in respect of the Bunyip Ridge fire was also issued at 4.45pm.

(xxiv) No warnings issued by the CFA included any information that after the wind change the eastern flank of the Kilmore fire would become its head and that therefore and thereafter the potential of the fire to cause loss and damage would be significantly increased.

(xxv) None of the members of the public who resided in the area affected by the Kilmore fire was given timely or adequate warning by the CFA of the danger posed by the Kilmore fire including by reason of the impending wind change.

(xxvi) The warnings which were issued by the CFA were up against the progress of the fire instead of ahead of the fire’s path and therefore were for all practical purposes useless and/or ineffective in warning the claimants.

(xxvii) Further, the warnings issued by the CFA were confusing.

(xxviii) Further, every warning issued by the CFA described the Kilmore fire as a “grass or scrub fire” when after 2.00pm or thereabouts the fire had crossed the Hume Freeway and had got into the Mount Disappointment area and was a huge and out of control blaze or blazes with significant forward spotting activity occurring through-out the afternoon with the result that the fire was nothing like the fire the CFA was describing to the public.

(xxix) Further, the warnings issued by the CFA did not satisfy best practice requirements for warnings.

(xxx) But for the breaches of the duties as aforesaid and/or any of them, the warnings as aforesaid would have been given so as to eliminate or minimise the risk that members of the public might not take action to avoid injury or death.

125

257. The CFA should have issued timely and adequate bushfire warnings to persons at risk which

specified not less than the following information:

(a) that the Kilmore fire was likely to reach a particular place or places at a particular time or

times;

(b) that the wind change forecast to occur mid to late afternoon on 7 February 2009 would

have a profound impact upon the Kilmore fire and this would put communities east of the

fire front at serious and material risk and danger and that those communities should take

heed that the risk posed by the effects of that wind change on the fire was life

threatening; alternatively

(c) that the Kilmore fire had crossed the Hume just before 2.00pm or thereabouts, and was

out of control and could not be brought into control and was spotting heavily many

kilometres ahead of the fire front and that therefore the CFA could not provide timely or

adequate or timely warnings to communities.

CFA “second duties” – causation and damage36


paragraphs 240 to 257 above the breach by CFA of:



during the Kilmore fire caused the personal injury claimants personal injury loss and damage.

Particulars

(i) The warnings as aforesaid were untimely and inadequate and did not enable persons at risk to take steps to avoid or minimise the risk of personal injury loss and damage.

(ii) But for the breaches of the duties as aforesaid and/or any of them, the warnings as aforesaid would have been given so as to enable persons at risk to take steps to avoid injury or death.


126

259. The personal injury loss and damage caused by the Kilmore fire was a natural and

foreseeable consequence of the breaches of duty as aforesaid alleged against the CFA in the

preceding paragraphs.

CFA duties not delegated37

260. Further:

(a) the common law duties of the State Co-ordinator, the Deputy Co-ordinator, the SER

personnel and/or Kilmore Fire Emergency Response Co-ordinators as referred to above;

and/or

(b) the statutory and/or common law duties of the DSE to issue warnings as referred to

below; and/or

(c) any agreement reached between Victoria Police, CFA and DSE that CFA and/or DSE

would undertake warnings to the public about bushfire risk as referred to above,

did not abrogate, discharge or delegate the responsibilities of the CFA so as to satisfy:

(i) the First CFA statutory warnings duty; and/or

(ii) the Second CFA statutory warnings duty; and/or

(iii) the First CFA common law warnings duty; and/or

(iv) the Second CFA common law warnings duty.

[There is no paragraph 261 or 262]

SECTION J – FAILURE TO WARN – DSE SECRETARY

First DSE warnings duty38


127

263. At all relevant times the DSE Secretary was a body corporate capable of being sued in its

corporate name.

Particulars


264. At all relevant times, the DSE Secretary was statutorily required to carry out proper and

sufficient work for the prevention and suppression of fire in, inter alia, State forests and

national parks.

Particulars


265. At all relevant times, the DSE Secretary and the CFA had partnership arrangements to provide

seamless and effective services to the Victorian community in relation to bushfires.

Particulars

The arrangements are detailed in section 3.2 of the DSE Fire Management Manual: DSE-CFA partnership Arrangements.

266. At all relevant times, the DSE Secretary and the DSE maintained ‘FireWeb’ which was the

primary system of the department for storing and sourcing all data and fire suppression

information.

Particulars

FireWeb was and is an intranet controlled and operated within the DSE.

267. At all relevant times, the DSE Secretary was aware or ought to have been aware of:

(a) the obligation on the State Co-ordinator, the Deputy Co-ordinator, the SER personnel

and Kilmore Fire Emergency Response Co-ordinators to give or cause to be given

bushfire warnings;

(b) the dependency of the State Co-ordinator, the Deputy Co-ordinator, the SER personnel

and/or Kilmore Fire Emergency Response Co-ordinators in giving or causing to be given

bushfire warnings on the DSE Secretary (through the DSE) providing relevant

information known to the DSE Secretary’s department about a bushfire.

128

268. Further, at all relevant times the Kilmore fire risks were reasonably foreseeable to the DSE

Secretary.

Particulars

(i) At all relevant times, the DSE Secretary knew or ought to have known that prior to 7 February 2009, the CFA had established a CFA ICC at Kilmore and the CFA fire plans referred to in paragraph 127.

(ii) In relation to the wind change risk within the Kilmore fire risks, the DSE Secretary knew or ought to have known that wind changes in relation to major bushfires cause substantial risk because the relevant flank of the fire becomes its front after the change. The DSE Secretary knew or ought to have known that the impact of wind change on the Victorian bushfires in 1983 was found to be the cause of 46 out of 47 deaths.

(iii) The DSE Secretary knew or ought to have known that a bushfire as referred to in paragraph (a) hereof might reach into public lands such as State forests and/or national parks in respect of which the DSE Secretary had fire prevention and suppression obligations as referred to in paragraph 55-56 hereof and would have or ought to have knowledge about the fire.

269. Further, at all relevant times, the DSE Secretary knew or ought to have known that if the State

Co-ordinator, the Deputy Co-ordinator, the SER personnel and/or Kilmore Fire Emergency

Response Co-ordinators gave or caused to be given bushfire warnings to the public (including

via any relevant website), the public would be likely to regard those warnings and their content

as a reliable and principal source of information on which to act in order to protect themselves

from the risk or danger of a bushfire.



risks;


(c) consequently, was to a material degree dependent for protection against personal injury

loss and damage upon the DSE Secretary to ensure, alternatively to take reasonable

steps to ensure, that the DSE Secretary would provide factual and timely advice and

information to the State Co-ordinator, the Deputy Co-ordinator, the SER personnel

129

and/or Kilmore Fire Emergency Response Co-ordinators to enable those members of

the Victoria Police to provide or cause to be provided bushfire warnings.

271. At all relevant times, the DSE Secretary knew or ought to have known that if it provided factual

and timely advice and information to the State Co-ordinator, the Deputy Co-ordinator, the SER

personnel and/or Kilmore Fire Emergency Response Co-ordinators about a bushfire, this

would enable those members of Victoria Police to provide or cause to be provided bushfire

warnings of the risk that a bushfire might or would be likely to reach a particular place by a

particular time and would thereby enable persons at risk to take steps to avoid personal injury

and death.

Particulars

If so warned, persons at risk would be able to protect themselves in a timely way in safety including if appropriate, leaving their properties or moving to a safer area.

272. In the premises, at all material times, the DSE Secretary owed to the personal injury claimants

a duty:



engaged by it,

to ensure, alternatively to take reasonable steps to ensure, that the State Co-ordinator, the


ordinators were provided with factual and timely advice and information to enable those

members of Victoria Police to provide or cause to be provided bushfire warnings to persons of

risk of the risk that a bushfire might or would be likely to arrive at a particular place by a

particular time so as to enable persons at risk to take steps to avoid personal injury and death

(the First DSE warnings duty).

273. The DSE Secretary was required by the First DSE warnings duty to provide factual and timely

advice and information to the State Co-ordinator, the Deputy Co-ordinator, the SER personnel

and/or Kilmore Fire Emergency Response Co-ordinators so that those members of Victoria

130

Police could provide or cause to be provided bushfire warnings to persons at risk of the risk

that a bushfire might or would be likely to reach a particular place by 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

and death.

Particulars

The factual and timely advice and information required to be given to the State Co-ordinator, the Deputy Co-ordinator, the SER personnel and/or Kilmore Fire Emergency Response Co-ordinators included advice and information which would enable those members of the Victoria Police to issue or cause to be provided timely and adequate warnings containing, depending on the particular fire circumstances and risk, where appropriate the provision of the following or parts of the following information to the public:










Breach of First DSE warnings duty39

274. At all relevant times during the afternoon of 7 February 2009, the DSE Secretary was aware of

the likely direction, path, and spread of the Kilmore fire, taking into account the weather

conditions including the temperature and prevailing wind direction and the impending wind

change.

Particulars

(i) The DSE Secretary and the CFA were in partnership as aforesaid so as to ensure a close working relationship for the management of bushfire emergencies.


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(ii) The State Fire Emergency Coordination Plan of 3-6 February 2009 provided a risk management assessment and strategies for the next four days in response to the extreme weather forecasted to occur, and identified the high risk area in the arc from the Otways, Macedon, Kinglake, Marysville, to the Dandenong Ranges.

(iii) The DSE Secretary and the CFA had established in consultation with the Victoria Police and other agencies the IECC.

(iv) At all relevant times, personnel from the DSE Secretary’s department, including the Chief Officer, Fire and Emergency Management, Ewan Waller, for the department, and the DSE’s State Duty Officer, was present and an active participant in the affairs of the IEEC in the management of the fire emergencies on 7 February 2009 including in relation to the Kilmore fire.

(v) By reason of the above matters, the DSE knew or ought to have known what the CFA knew about the Kilmore fire and its likely direction, path, and spread taking into account the weather conditions including the temperature and prevailing wind direction and the impending wind change.

(vi) In this regard the plaintiff refers to and repeats the particulars sub-joined to paragraph 236 hereof as to what the CFA knew and in turn the DSE knew or ought to have known about the Kilmore fire in the above regard.

(vii) The DSE (through the State Air Desk) despatched a spotter aircraft (Fire Spotter 381) and two fire bombing aircraft involved in the Kilmore fire attack, with all aircraft working over the fire by 12.53pm, and with the observational aircraft tasked with observing and reporting on the movement of the fire. The DSE relied on information from that Fire Spotter aircraft.

(viii) Further, the DSE Secretary had personnel stationed at the IECC who were aware of the matters referred to in the preceding sub-paragraph of these particulars.

(ix) Further, the DSE Secretary had personnel stationed at the fire towers referred to in the particulars sub-joined to paragraph 61 thereof.

(x) Further, having regard to the presence of the DSE Secretary’s personnel at the IECC, the DSE Secretary was aware or ought to have been aware of the information known to the CFA from its control centres at Kilmore and Kangaroo Ground.

(xi) Further, the DSE Secretary was aware of the weather information and forecasting which the BoM had provided to the CFA as set out in the particulars sub-joined to paragraph 61 hereof.

(xii) Further, the DSE Secretary had personnel at the IECC who had access to the CFA’s linescans as aforesaid and to the satellite image as aforesaid.

(xiii) Further, at all relevant times during the afternoon of 7 February 2009, the DSE Secretary had personnel with access to the information on the DSE’s ‘FireWeb’ as aforesaid, which enabled it to and did inform the DSE Secretary’s personnel of the speed, direction, spread, and extent of the Kilmore fire including its forward spotting into communities.

(xiv) The hand drawn map produced within the IECC at or around 3.30pm as aforesaid was provided to the DSE State Duty Officer at the IECC.

(xv) At all relevant times, the Chief Officer of DSE as aforesaid, present at the IECC, knew as of a short time after the Kilmore fire had commenced that the fire would run to populated areas.

(xvi) To the DSE Secretary’s knowledge, there was a material risk that there would be a wind change which would affect the Kilmore fire causing the

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eastern flank of the fire to become its front and thereby putting communities east of the fire at substantial risk and danger.

(xvii) Further, during the afternoon of 7 February 2009, the DSE Secretary through the IECC received advice from the South Australian Country Fire Service about weather conditions and the progress of the wind change in South Australia, and the movement of the front was continually monitored by the DSE Secretary’s personnel at the IECC.

(xviii) In the premises, at all material times after 12.00pm on 7 February 2009, the DSE Secretary was aware from information it had received from the BoM and other sources that the predominant northerly wind blowing across Victoria would swing to become a south-westerly some time between 3.00 – 6.00pm.

(xix) Wind change forecasts were issued to the DSE Secretary’s personnel (within the IECC) at 12.00pm, 1.50pm, 4.30pm, and 6.30pm on 7 February 2009.

(xx) At or about 6.00pm, a fire impact zone map was prepared within the IECC and available to the DSE Secretary’s personnel which identified the communities likely to be impacted by the Kilmore fire.

(xxi) The potential effect of the south-westerly change on fires was appreciated by the personnel of the DSE Secretary at the IECC including as to the dangers posed by the change to communities. To the knowledge of personnel of the DSE Secretary, a proposed media release was prepared within the IECC and signed by Russell Rees the then Chief Fire Officer of the CFA at 6.09pm. It referred to erratic winds accompanying the change and the potential for unpredictable fire behaviour. The media release was never released to the public.

(xxii) In the premises, the DSE Secretary’s personnel knew that accurately tracking and monitoring of the fire, forecasting/predicting its movement, and assessing the likely timing of the wind change, was vital in being able to assess the potential impact of the fire and the risk and danger posed by it to the public.

275. At all relevant times prior to and on 7 February 2009, the DSE Secretary breached the First

DSE warnings duty by not providing factual and timely advice and information to the State Co-

ordinator, the Deputy Co-ordinator, the SER personnel and/or the Kilmore Fire Emergency

Response Co-ordinators to enable those members of the Victoria Police to issue or cause to

be provided bushfire warnings to persons at risk.

Particulars

The vast majority of the information known to the DSE Secretary’s personnel referred to in the preceding paragraph was not provided by the DSE to the members of the Victoria Police at the SERCC or within the IECC in a timely manner or at all. The only major information provided to the SERCC was at 4.55pm, when the hand drawn Kilmore fire prediction map (derived from the 3.30pm prediction map and prepared at 4.15pm within the IECC) as aforesaid was faxed to the SERCC. Further particulars will be provided after discovery and prior to trial.

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First DSE warnings duty – causation and damage40


paragraphs 263 to 275 above the breaches by the DSE Secretary of the First DSE warnings

duty during the Kilmore fire caused the personal injury claimants personal injury loss and

damage.

Particulars

But for the breaches of the duties as aforesaid and/or any of them, the persons at risk would have been provided with timely and adequate warnings and would have taken steps to avoid injury or death.


foreseeable consequence of the breach of the First DSE warnings duty.

Second DSE warnings duty41

278. Further, at all relevant times, the DSE Secretary had knowledge and expertise in relation to

bushfire risks and in relation to the need to warn the public of such risks in order to protect the

public from personal injury loss and damage.

Particulars

(i) The DSE was aware that the Report of Inquiry into the 2002-03 Victorian Bushfires (paragraph 23.21) had recommended that the DSE (and CFA) ensure in relation to the provision of information to communities affected by fires that, among other things, incident management teams understood that one of their primary responsibilities was to keep the community informed as to where the fire was, its likely path, what was being done to combat the fire, and any preparations the community should undertake, and that information units were effectively integrated into incident management teams.

(ii) The DSE was at all relevant times aware of the content of DISPLAN.


134

(iii) The plaintiff refers to and repeats paragraph (v) of the particulars sub-joined to paragraph 82 hereof.

279. Further, at all material times, the DSE Secretary knew or ought to have known that specific

warnings provided and referring to specific groups and/or communities and/or localities and/or

local residents in areas threatened by bushfire, rather than generalised warnings addressed

and referring to the general public, were necessary to enable those persons in those areas to

take steps to avoid the risk of personal injury and death.

280. At all material times, DSE Secretary knew or ought to have known that a large proportion of

the area south and to the east of Kilmore East contained the Communities.

281. Further, at all relevant times the DSE Secretary knew or ought to have known of the Kilmore

fire risks.

282. Further, at all relevant times, the DSE Secretary knew or ought to have known that if the DSE

gave bushfire warnings to the public (including via any relevant website), the public would be

likely to regard those warnings and their content as a reliable and principal source of

information on which to act in order to protect themselves from the risk or danger of a bushfire.

283. Further, the DSE Secretary knew that the EM Manual prescribed that the ultimate goal of

emergency management was to ensure a “safer more sustainable community.”



risks;



injury loss and damage upon the DSE Secretary to ensure, alternatively to take

reasonable steps to ensure, that bushfire warnings would be issued to persons at risk.

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285. Further, at all relevant times, the DSE Secretary knew or ought reasonably to have known that

bushfire warnings would enable persons at risk to take steps to avoid personal injury and

death.

Particulars

If so warned, persons at risk would act so as to protect themselves in a timely way in safety including if appropriate, leaving their properties or moving to a safer area.

286. Further, as at and on 7 February 2009, the DSE Secretary assumed responsibility for the

provision of bushfire warnings.

Particulars

(i) During the fires of 2002-03, extensive use was made of the DSE website to provide incident information to the community to assist their personal decision making.

(ii) In 2005, the CFA and DSE entered into the memorandum with the ABC referred to in paragraph 251 above.

(iii) The DSE Fire Suppression Manual stated that the relevant incident controller in relation to a fire is responsible for ensuring that members of the general public, particularly people in potentially affected local communities, are properly informed of the wildfire situation and the support effort, and that local communities under direct threat or potentially under direct threat of fire will require specific up-to-date information at regular intervals: Chapter 7.1 of the Manual.

(iv) In or about 2008, the DSE and CFA sought to establish the IECC for the management of bushfire emergencies, and did so thereafter.

(v) The establishment of the IECC was based on an earlier decision to merge the DSE and CFA bushfire operations for the 2008/9 fire season.

(vi) The IECC was initially intended to include the Victoria Police as a further emergency agency however in March 2008 the Victoria Police formally informed the DSE and the CFA that the Police Operation Centre and the SERCC would remain within the Victoria Police Centre.

(vii) As a consequence, the Victoria Police’s core operations continued to be conducted within its own headquarters at the SERCC and not within the IECC.

(viii) At all relevant times, the DSE had prepared a North East Area Readiness and Response Plan, setting out the desirable levels of readiness of personnel, systems and equipment and their location and availability for the detection and control of wildfire.

(ix) At all relevant times prior to and on 7 February 2009, the DSE Secretary had established a dedicated page on its website on which warnings would be posted so as to warn the public of the risk and danger of bushfire. The warnings were to be called, inter alia, ‘awareness’ messages and ‘urgent threat’ messages.

136

(x) According to the DSE Fire Suppression Manual, the DSE website, at www.dse.vic.gov.au\fires provides up-to-date information on the current fire situation, with the DSE State Duty Officer, through the ECC Information Officer (the Emergency Coordination Centre, the precursor to the IECC) being responsible for ensuring that current, accurate information is provided on the DSE website: Chapter 7.1 of the DSE Fire Suppression Manual.

(xi) At all relevant times prior to and on 7 February 2009, the DSE Secretary had established a fire prediction programme to enable it to predict the path of fire for the purposes of, inter alia, being able to warn members of the public of bushfire risk and danger.

(xii) At all relevant times on 7 February 2009, the DSE Secretary had access to the expertise of fire prediction experts, including Dr Tolhurst, for the purposes, inter alia, of predicting the path and spread of fire for the purposes of, inter alia, being able to warn members of the public of bushfire risk and danger.

(xiii) At all relevant times prior to and on 7 February 2009, the DSE Secretary had established, with the CFA, the VBIL. The VBIL was a means, inter alia, of the DSE Secretary providing information to the public to warn them of bushfire risk and danger. The VBIL was established as a joint initiative of the DSE and CFA and operated from the DSE Customer Service Centre in Ballarat, established to provide one point of contact for the community needing information on bushfire activity in Victoria.

(xiv) Further, on 5 February 2009, the DSE Secretary issued a media release with the CFA headed ‘Fire Services Warn of Continuing Fire Threat’. In the release, the DSE stated that ‘Important steps to take to avoid the threat of fire include: ... if travelling, listen to ABC Local Radio or community radio station; For bushfire information, check the CFA and DSE websites or call the [VBIL]”. The same message was contained in a further media release published by the DSE on 6 February 2009.

(xv) In the premises, the DSE Secretary assumed responsibility for the issue of warnings to the public from the IECC about bushfire risk by way of a complement to the warnings to be issued by the CFA.

(xvi) DSE personnel were deployed to the Kilmore ICC being operated by the CFA to take up roles in resources, situation, air operations, liaison and recovery.

287. By (inter alia) its media releases on 5 and 6 February 2009 the DSE represented to the public

that in order to obtain bushfire information and avoid the threat of bushfires members of the

public should check the DSE website or call the VBIL.

288. The DSE Secretary knew and intended that the members of the public including the persons

at risk would rely on the DSE website and the VBIL in order to obtain bushfire information and

avoid the threat of bushfires.

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289. In the premises, and having regard to the statutory duties owed by the DSE Secretary as

aforesaid, at all material times, the DSE Secretary owed to the personal injury claimants a

duty:



engaged by it,

to ensure, alternatively to take reasonable steps to ensure, the issue of bushfire warnings to

persons at risk of the risk that a bushfire might or would reach a particular place by a particular

time so as to enable persons at risk to take steps to avoid personal injury and death (the

Second DSE warnings duty).

290. The DSE Secretary was required by the Second DSE warnings duty to issue bushfire

warnings to persons at risk of the risk that a bushfire might or would reach a particular place

by a particular time so as to enable persons at risk to take steps to avoid personal injury or

death.

Particulars


Breach of Second DSE warnings duty42

291. At all relevant times prior to and on 7 February 2009, the DSE Secretary breached the Second

DSE warnings duty by not issuing bushfire warnings to the persons at risk which were timely

or adequate.

Particulars

(i) The DSE Secretary’s Department issued warnings which were equivalent or relevantly equivalent to the warnings issued by the CFA as referred to in the particulars sub-joined to paragraph 256 hereof. save that some Fire Information Releases that were published on the CFA website were not published on the DSE website, including the following:


138

(A) an ‘awareness message’ bearing the time 12.30pm relating to the communities of Kilmore East, Wandong and Clonbinane;

(B) an ‘urgent threat message’ bearing the time 1.50pm relating to the community of Wandong;

(C) an ‘alert message’ bearing the time 2.20pm relating to the communities of Kilmore East, Wandong and Clonbinane;

(D) an ‘urgent threat message’ bearing the time 4.40pm relating to the communities of Whittlesea, Humevale, Arthurs Creek, Nutfield, Doreen and Eden Park;

(E) an ‘urgent threat message’ bearing the time 5.20pm relating to the communities of Wandong, Wallan, Wallan East, Eden Park, Whittlesea, Humevale, Bruce’s Creek, Upper Plenty, Kinglake West, Pheasant Creek, Smiths Gully, Kinglake, Flowerdale, Glenburn, and Hurstbridge;

(F) an ‘urgent threat message’ bearing the time 8.20pm relating to the communities in the area of Kinglake to Flowerdale;

(G) an ‘urgent threat message’ bearing the time 9.50pm relating to the communities of Whittlesea, Humevale, Arthurs Creek, Nutfield, Eden Park and Doreen;

(H) an ‘urgent threat message’ bearing the time 9.50pm relating to to communities of Wandong, Wallan, Wallan East, Eden Park, Whittlesea, Humevale, Bruce’s Creek, Upper Plenty, Kinglake West, Pheasant Creek, Smiths Gully, Kinglake, Flowerdale, Glenburn and Hurstbridge;

(ii) Between 12.40pm and 2.25pm, no information was posted to the DSE website concerning the Kilmore fire.

(iii) The DSE Secretary’s Department also issued one further warning which the CFA did not, namely the ‘urgent threat’ message at 4.10pm on 7 February 2009 which stated, inter alia, that the communities of Clonbinane, Mount Disappointment, Kinglake, Heathcote Junction and Upper Plenty, Hume Vale, Reedy Creek, Strath Creek may be directly impacted upon by the Kilmore fire. The warning was loaded onto the DSE website by 4.45pm.

(iv) The above information and warnings were not timely and did not accurately reflect the fire information available to the DSE Secretary and the predictions the DSE Secretary’s personnel had made, or were aware of, for the path, spread and timing of the movement of the fire during the course of the afternoon of 7 February 2009.

(v) From 2.00pm on 7 February 2009, the DSE Secretary was aware that the Kilmore fire had crossed the Hume, would shortly enter the Mount Disappointment forests, that it was burning out of control, and that there was a high potential that life and property in communities forward of the path of the fire would be endangered by the fire.

(vi) No warnings issued by the DSE Secretary concerning the Kilmore fire included information as to the anticipated impact of the south-westerly change on the behaviour and direction of the fire even though in respect of the Bunyip Ridge fire an ‘alert message’ had been issued at 4.14pm about the wind change and provided an ‘urgent threat’ message to various communities in respect of the ‘after change’ period. A further wind change warning in respect of the Bunyip Ridge fire was also issued at 4.45pm.

139

(vii) None of the members of the public who resided in the area affected by the Kilmore fire was given timely or adequate warning of the danger posed by the Kilmore fire.

(viii) The warnings which were issued by the DSE Secretary’s personnel were up against the progress of the fire instead of ahead of the fire’s path and therefore were for all practical purposes useless and/or ineffective in warning the claimants.

(ix) Further, the warnings issued by the DSE Secretary were confusing.

(x) Further, every warning issued by the DSE Secretary described the Kilmore fire as a “grass or scrub fire” when after 2.00pm or thereabouts the fire had crossed the Hume Freeway and had got into the Mount Disappointment area and was a huge and out of control blaze or blazes with significant forward spotting activity occurring through-out the afternoon with the result that the fire was nothing like the fire the DSE Secretary’s personnel was describing to the public via the DSE website and by other means including ABC radio.

(xi) Further, the warnings issued by the DSE Secretary did not satisfy best practice requirements for warnings.

(xii) But for the breaches of the duties as aforesaid and/or any of them, the warnings as aforesaid would have been given so as to eliminate or minimise the risk that members of the public might not take action to avoid injury or death.

292. The DSE Secretary should have issued timely and adequate bushfire warnings to persons at

risk which specified not less than the following information:

(a) that the Kilmore fire was likely to reach a particular place or places at a particular time or

times;

(b) that the wind change forecast to occur mid to late afternoon on 7 February 2009 would

have a profound impact upon the Kilmore fire and this would put communities east of the

fire front at serious and material risk and danger and that those communities should take

heed that the risk posed by the effects of that wind change on the fire was life

threatening; alternatively

(c) that the Kilmore fire had crossed the Hume at just before 2.00pm or thereabouts, and

was out of control and could not be brought into control and was spotting heavily many

kilometres ahead of the fire front and that therefore the DSE Secretary could not provide

adequate or timely warnings to communities.

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Second DSE warnings duty – causation and damage43


paragraphs 278 to 292 above the breaches by the DSE Secretary of the Second DSE

warnings duty during the Kilmore fire caused the personal injury claimants personal injury loss

and damage.

Particulars

(i) The warnings as aforesaid were untimely and inadequate and did not enable persons at risk to take steps to avoid or minimise the risk of personal injury and death.

(ii) But for the breaches of the duties as aforesaid and/or any of them, the warnings as aforesaid would have been given so as to enable persons at risk to take steps to avoid injury or death.


foreseeable consequence of the breaches of duty alleged against the DSE Secretary in the

preceding paragraphs.

DSE duties were not delegated44

295. Further:

(a) the common law duties of the State Co-ordinator, the Deputy Co-ordinator, the SER

personnel and the Kilmore Fire Emergency Response Co-ordinators to warn the public

(including persons at risk) referred to above; and/or

(b) the statutory and/or common law duties of the CFA in relation to warnings to the public

(including persons at risk) referred to above; and/or

(c) the agreement reached between Victoria Police, CFA and DSE and/or the DSE

Secretary that CFA and/or DSE would undertake warnings to the public about bushfire

risk referred to above,


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did not abrogate, discharge or delegate the responsibilities of the DSE Secretary so as to

satisfy:

(i) the First DSE warnings duty; and/or

(ii) the Second DSE warnings duty.

[There is no paragraph 296 or 297.]

SECTION K – COMMON QUESTIONS OF LAW OR FACT

298. The questions of law or fact common to the claims of the plaintiff and each of the group

members or subgroup members are:

(a) how the Kilmore bushfire started;

(b) whether the Statutory Duties were owed by SPI to the claimants, and if so the content

of those duties;

(c) whether the General Duty was owed by SPI to the claimants, and if so the content of the

duty;

(d) whether the Kilmore bushfire was caused by a breach by SPI of any of the Statutory

Duties or the General Duty;

(e) as between the plaintiff and subgroup members, and SPI - whether the plaintiff and

subgroup members suffered actionable nuisance created by SPI;

(ee) in relation to the SECV duty:

(i) whether the duty was owed by SECV and ES-Victoria to the class of persons

(including the claimants or any of them) described in paragraph 24F;

(ii) if the duty was owed as alleged, whether, and if so how and when, it was

breached;

(iii) whether the breach caused the Kilmore fire;

(iv) whether SPI is liable for loss and damage caused by the breach;

(f) so far as ELPD reasonable care claims are made against SPI:

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(i) whether the said claims are apportionable under Part IVAA of the Wrongs Act;

(ii) if the ELPD reasonable care claims are apportionable, whether any other

defendant is a concurrent wrongdoer for the purposes of Part IVAA of the Wrongs

Act, and the proportionate responsibility of any such concurrent wrongdoer;

(g) whether the UAM duty was owed by UAM to the claimants, and if so the content of the

duty;

(h) whether the Kilmore bushfire was caused by a breach by UAM of the UAM duty;

(i) so far as ELPD reasonable care claims are made against UAM:





(j) whether DSE Secretary owed any and if so which of the duties alleged, and if so the

content of each such duty;

(k) whether DSE Secretary breached any such duty;

(l) whether any such breach of duty by DSE Secretary caused or contributed to any and if

so what behaviour, features or characteristics of the Kilmore bushfire;

(m) so far as ELPD reasonable care claims are made against DSE Secretary:





(n) whether CFA owed any and if so which of the duties alleged, and if so the content of

each such duty;

(o) whether CFA breached any such duty;

(p) whether any such breach of duty by CFA caused or contributed to any and if so what

behaviour, features or characteristics of the Kilmore bushfire;

(q) so far as ELPD reasonable care claims are made against CFA:


143




(r) whether the State Co-ordinator, the Deputy Co-ordinator, the SER personnel and the

Kilmore Fire Emergency Response Co-ordinators owed any and if so which of the duties

alleged, and if so the content of each such duty;

(s) whether the State Co-ordinator, the Deputy Co-ordinator, the SER personnel and the

Kilmore Fire Emergency Response Co-ordinators breached any such duty;

(t) what are the principles for identifying and measuring compensable losses suffered by

the claimants resulting from the breaches of duty or nuisance alleged herein..

AND THE PLAINTIFF CLAIMS on her own behalf and on behalf of the group members:

Against SPI:

A. Damages;

B. Interest pursuant to statute;

C. Costs.

Further or alternatively, against UAM:

D. Damages;

E. Interest pursuant to statute;

F. Costs.

Further or alternatively, against DSE Secretary:

G. Damages;

H. Interest pursuant to statute;

I. Costs.

144

Further or alternatively, against CFA:

J. Damages;

K. Interest pursuant to statute;

L. Costs.

Further or alternatively, against the State:

M. Damages;

N. Interest pursuant to statute;

O. Costs.

Dated: 29 October 2012 30 November 2012

R. Richter QC

T. Tobin SC

A. Keogh SC

L. Armstrong

M. Szydzik

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Maurice Blackburn

Solicitors for the Plaintiff

Annexure 1

146

Annexure 2

147

Annexure 3

Annexure 4

Schedule of parties

CAROL ANN MATTHEWS

Plaintiff - and - SPI ELECTRICITY PTY LTD (ACN 064 651 118)

First Defendant UTILITY SERVICES CORPORATION LIMITED (ACN 060 674 580)

Second Defendant SECRETARY TO THE DEPARTMENT OF SUSTAINABILITY AND ENVIRONMENT

Third Defendant COUNTRY FIRE AUTHORITY

Fourth Defendant STATE OF VICTORIA

Fifth Defendant - and -

SPI ELECTRICITY PTY LTD (ACN 064 651 118) Plaintiff by Counterclaim

- and - UTILITY SERVICES CORPORATION LIMITED (ACN 060 674 580)

First defendant to Counterclaim

SECRETARY TO THE DEPARTMENT OF SUSTAINABILITY AND ENVIRONMENT

Second defendant to Counterclaim

COUNTRY FIRE AUTHORITY Third Defendant to Counterclaim

STATE OF VICTORIA

Fourth Defendant to Counterclaim

CAROL ANN MATTHEWS Fifth Defendant to Counterclaim