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Michael Eburn
Michael Eburn
Dr Michael Eburn received his PhD from Monash University, Melbourne on Australia's domestic arrangements for managing an international disaster response. He is a leading expert in the law relating to emergency management and the emergency services.
 

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Feb. 5, 2012 2:00 am
A NSW volunteer firefighter has written to me with this question: ‘The new OHS laws as of 1/1/12 classify us "workers" and as such become liable in the case of accident. Put simply: The scenario: Responding to a fire I am rolling a hose of the truck, I trip and the jet hits a person in the face and blows out an eye. Can I be held liable in any way, and subject to the very stiff penalties of up to...  Read More
Dec. 12, 2011 5:56 am
A correspondent has asked ‘Can a person refuse to be rescued?’  He gives the context as:  A person is involved in a motor vehicle accident in an area serviced (primarily) by a volunteer rescue service, however there is also a professional emergency service nearby that can also provide rescue services (they act up as primary rescue service should the volunteer service not be available). The...  Read More
Dec. 7, 2011 11:11 pm
In an earlier post I mentioned that three UK incident controllers were being prosecuted over the deaths of four firefighters. Fear of prosecution may well have caused an unnecessary death as reported in the UK’s Mail Online : ‘Left to die by the health and safety jobsworths: Mother who fell 45ft down mine shaft wasn't rescued - because firemen were told life-saving gear would break the rules’....  Read More
Dec. 7, 2011 1:36 am
Three firefighters who acted as incident controllers during a fire in 2007 have been charged with manslaughter over the death of four firefighters. See Three brigade bosses to be charged with manslaughter over deaths of four fire fighters in warehouse blaze (1 March 2011) and Atherstone fire charges could be dropped (28 November 2011). Unfortunately neither of these reports (or the many...  Read More
Dec. 5, 2011 12:12 am
For further news on this case, see David Chen, 'Court Approves $40m Black Saturday fire payout', ABC Online , 5 December 2011 . If you want all the technical details, you can read the judgment of Beach J in Thomas v Powercor Australia Ltd [2011] VSC 614 . There is also an interesting decision in Thomas v Powercor Australia Ltd [2011] VSC 586 where Forrest J had to decide whether or...  Read More
Nov. 22, 2011 11:59 pm
A class action arising from the Horsham fires on 7 February 2009 has settled in the Victorian Supreme Court. Read the story from the ABC here . You can read the various court documents and the terms of settlement from the web page of Maddens Solicitors that acted for the plaintiff. Because this case has settled it means that no legal or factual issues have been determined by the court...  Read More
Nov. 7, 2011 12:35 am
In a paper that has been accepted for publication in the International Journal of Wildland Fire  I have reviewed incidents of post bushfire litigation as well as non-litigated claims made against the NSW Rural Fire Service in the period 1989 to 2010. I concluded that: Today, routine fires continue to be dealt with without frequent litigation although there is a constant stream of claims for...  Read More
Nov. 7, 2011 12:26 am
Read the story from the ABC here :   We are told that the boys were found to be 'unfit to be tried' after evidence of their 'abnormally low intelligence'.   To be 'fit to be tried' an accused person has to have sufficient understanding of the process to be able to receive advice from, and give instructions to their lawyers.   It is related to, but not the same as, insanity. The defence...  Read More
Nov. 2, 2011 7:41 pm
The Victorian Government is conducting a review of Victoria's emergency management arrangements. You can find the discussion paper and details of how to contribute at the website of the Department of Premier and Cabinet . I've made a submission dealing with issues of 'control and coordination' and conflicts and confusion in the legislation, the State Emergency Response Plan and the Australian...  Read More
Oct. 12, 2011 9:43 pm
A number of Bills are before the Australian parliaments that are relevant to the emergency services. The summaries below are indeed just summaries and do not set out all the relevant details when the legislation will apply. To understand the full effect of these Bills the reader needs to look at the actual text of the Bill. It should also be noted that a Bill is a draft Act, it is not law...  Read More
Oct. 11, 2011 12:56 am
Politis v Trewin & The Northern Territory of Australia [2011] NTSC 78 is another case that demonstrates the need to comply with the letter of the law. This case involves the Northern Territory Fire and Rescue Service but it was not really their decision that was the problem. In June 2008 a number of firefighters applied for promotion to the rank of Station Officer. There were three...  Read More
Oct. 4, 2011 9:00 pm
Huggins v Mullins [2011] NSWSC 1123 (15 September 2011) This case, from the NSW Supreme Court, is a valuable lesson to the emergency services, in this case NSW Fire and Rescue, about the rule of law. The applicant, Huggins, was involved in a fight with a colleague at a fire station. There were clearly issues about who started the brawl and whether or not the actions of the applicant were...  Read More
Sep. 6, 2011 6:12 am
There has been another judgment in the ongoing Black Saturday bushfire litigation, though the issue in the latest dispute may well surprise readers of this blog. In Matthws v SPI Electricity (No. 3) [2011] VSC 399 Forrest J had to consider where an Associate Judge could read extracts from the reports of the 2009 Victorian Bushfires Royal Commission! A step in civil litigation is ‘discovery’...  Read More
May 10, 2011 10:51 pm
Yesterday (10 May 2011) Justice Forrest, in the Supreme Court of Victoria, handed down two judgments in the litigation arising out of the Black Saturday bushfires of February 2009. Matthews v SPI Electricity (No 1) [2011] VSC 167 involved an application to strike out the class action brought by Ms Matthews on behalf of all people who suffered injury or loss due to the Kilmore East fire.  ...  Read More
Sep. 26, 2010 1:22 am
The combined Bushfire CRC and Australasian Fire and Emergency Services Authorities Council conference was held in Darwin in September 2010.  I presented a paper on 'The Legal Consequences of the 2003 ACT Bushfires'.  You can find my paper , my presentation slides and other papers on legal issues arising from the 2009 Victorian Bushfires Royal Commission , at the conference website . ...  Read More
Sep. 26, 2010 1:14 am
The Royal Commission into the 2009 Black Saturday Victorian bushfires has concluded and its final report has been handed down.  The report has not been discussed in detail here in part because the report does not actually determine what the law is. I did have some comments on the Royal Commission and also on the litigation that is continuing before the ACT Supreme Court arising from the 2003...  Read More
Feb. 28, 2010 5:58 pm
The ABC reports that litigation arising from the 2003 Canberra fires starts in the ACT Supreme Court today, Monday 1 March 2010. Read the story here . This litigation will be very significant in determining the legal duty of care owed by fire agencies and governments to the communities they are established to protect, as well as what may reasonably be expected from them in extreme events. The...  Read More
Feb. 11, 2010 5:52 pm
Litigation from bushfires in New South Wales in 2001 is proceeding in the NSW Supreme Court. Read the full story from the S ydney Morning Herald . 'Failure to warn' litigation is an increasingly attractive option for litigants but it faces it's own problems. For my analysis read my article 'Litigation for failure to warn of natural hazards and community resilience' (2008) 23 Australian...  Read More
Jan. 5, 2010 6:03 am
The debate that we’ve been having on these pages prompted me to go and look up some cases involving OHS and discrimination in the emergency services. The recent cases I found were interesting but did not establish any significant precedents. It is interesting that what they have confirmed is that the emergency services, like every employer, cannot make assumptions or judgments to say that...  Read More
Dec. 11, 2009 4:47 am
Read the full story from the ABC A number of claims (in excess of 3000) were lodged with the Supreme Court of the ACT just before the limitation period expired after the 2003 Canberra firestorm. That action was commenced by insurers who had paid out following the fires. It appears that the NRMA has now withdrawn from the action but the reasons are not given. In a paper presented to the...  Read More
Dec. 6, 2009 7:01 pm
The Coroners Act 2009 (NSW) will commence on 1 January 2010. The second reading speech, where the minister explains the reason for the new Act, can be read from the NSW Parliament website . The Attorney General, in introducing the new Act said "The reforms in this bill broadly deal with four areas of coronial law: governance structure of the coronial jurisdiction; the categories of death...  Read More
Oct. 23, 2009 8:37 pm
A Victorian fire fighter has been given a suspended gaol sentence after enter a plea of guilty to a charge of dangerous driving causing the death - see the article from the Age ). Under the Australian Road Rules the driver of an emergency vehicle is exempt the provisions of the rules provided they are sounding their siren or have the warning beacons on and they are taking reasonable care. ...  Read More
Jul. 6, 2009 1:26 am
The case of Nelligan v Mickan & Mickan [1998] SASC 6935 (a decision of Millhouse, Olsson & Debelle JJ) arose from 1993 bushfires in South Australia. The defendant (Nelligan) was driving his farm utility that had, on the back, a water tank and pump that was being operated by his brother, to fight the fire. They had seen another similar vehicle driven by Paech, with Mickan on the back,...  Read More
Jun. 25, 2009 10:34 pm
Attached is a brief paper that I have written on this subject. I would be interested in any comments, particularly comments that volunteer members of the Emergency services. What is scarier? The thought of being sued or the thought of being asked to account for your actions by the coroner? why-being-called-before-the-coroner-is-worse-than-being-sued Michael Eburn 26 June 2009  Read More
Jun. 25, 2009 10:06 pm
In January 2003, fires that had started burning in the ACT and NSW merged together and entered Canberra causing widespread damage and leaving four people dead. A lengthy inquest was held that lead to adverse comments being made against members of the Emergency Services Bureau ('the ESB'). In the course of the inquest, the members of the ESB took the coroner to court on three occasions to...  Read More
Feb. 16, 2009 9:45 pm
The tragedy of the Victorian bushfires has thrown up many legal issues. These are discussed in the programme 'The Law Report' originally broadcast on ABC Radio National on Tuesday 17 February, which included commentary from me on the litigation following the 2003 Canberra fires. You can listen to the programme from the ABC website: ABC Law Report Home Michael Eburn 17 March 2009  Read More
Feb. 4, 2009 6:30 pm
The 2003 fires that devastated Canberra and the ACT have been the subject of court action in the ACT Supreme Court. The NSW Rural Fire Service, a defendant in the matter, tried to have the claim against it dismissed on the basis that the case was unarguable under the current law. On the 5th September 2008 the Court refused that application, and will now allow the matter to go to trial. You...  Read More
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