A hearing has begun in the Tasmania Supreme Court, where Myer are suing the Tasmania Fire Service over the loss of the inner city Myer building on 22 September 2007.   The story is reported in the Hobart Mercury; Fire service sued by Myer.

This fire was the subject of an earlier coronial enquiry (Record of Investigation into a Fire at the Myer Store at 98-108 Liverpool Street, Hobart, on 22 September 2007 [2009] TASCD 239).  Mr Webster, coroner, found:

4. That the Tasmania Fire Service and its personnel did not have in operation prior to the fire an adequate pre-determined strategy for fighting fires in multi-storied buildings and that this led to many errors in the fighting of the fire which hampered the effective fighting of the fire.

5. That the fire fighters’ decision to isolate the sprinkler system, which was necessitated by their failure to isolate the power to the building in a timely manner, caused the fire to spread to a greater extent than it would have otherwise done.

6. That the Myer building would not have been totally destroyed but for the action in isolating the sprinkler system and that the fire dam.

He further found:

15. The reactivation of the fire sprinklers had little or no effect on the control of the fire.

16. The Tasmania Fire Service fire-fighters should have utilized available boosters when reactivating the sprinklers.

17. The failure to utilize the booster system when reactivating the sprinklers meant that there was no mitigation to the problems which resulted from the isolation of the sprinklers.

18. If the fire-fighters had used the booster system it would have assisted in retarding the spread of the fire and damage caused but I am unable to reach any conclusions as to the degree that it would retarded the fire or lessened damage.

19. The booster system should not have been needed as the sprinkler system should not have been isolated. It is the isolation of the sprinkler system which contributed significantly to the spread of the fire and additional damage.

A coroner’s finding does not determine legal rights and responsibilities, that has to be done in a court of law and that is the reason for the proceedings now before the court.

A critical issue in this case is the decision of the fire service to turn off the sprinkler system. According to the Coroner, the fire service responded to a fire alarm at the Myer store. As they investigated they could smell burning and saw wisps of smoke and water from the sprinkler system but they were unable to locate the seat of the fire.   Whilst two officers were

… discussing turning off the sprinkler system fireman V started using a pike pole to remove parts of the ceiling to look for the fire. Smoke and considerable water was coming from where the ceiling had been pulled down and electrical wires were dropping down. Electrical power was still connected and there was a build up of water on the floor. Officer V was standing in a quantity of water and with an electrical cable hanging from the ceiling he was fearful of electrocution.

It was suggested by fireman J that in order to avoid the risk of electrocution the sprinkler system should be turned off.

With the sprinklers off, the fire which was burning in a void between the ground and first floor, took hold and destroyed the building.

A critical issue in this case is whether or not the fire brigades owe any duty of care to an individual (and for legal purposes, Myer is an individual).  The UK common law was established by a case known as Capital and Counties (but which has the real title of Capital and Counties PLC v Hampshire County Council [1997] EWCA 3091; [1997] 2 All ER 865).  In that case three actions against the fire brigades were heard together because ‘they raise similar questions of law, in particular whether and if so in what circumstances a fire brigade owes a duty of care to the owner or occupier of premises which are damaged or destroyed by fire.’

The cases involved:

  1. A case much like the Myer fire; a fire commenced and the Hampshire fire brigade attended.  The Station Officer in charge ordered that the sprinklers be turned off ‘even though the brigade had not yet found the seat of the fire, and were not effectively fighting it themselves. The sprinklers were therefore, at that stage, the only operative means of fighting the fire. Disabling them had an immediate, or almost immediate, adverse effect on the restraining of the fire and rapidly led to its going out of control.’  At the end of the day the entire building was a total loss.  The trial judge found that if they had ‘left the sprinklers in operation … the combined effect would have been to avert a total loss. Three quarters of Block A and the whole of Blocks B and C would have been saved
  2. A fire started by a pyrotechnics, special effects company.  They caused an explosion that caused debris to fall on the plaintiff’s land and start a fire.  Fire fighters employed by the explosives company extinguished the fire before the London Fire Brigade arrived.  Firefighters from the Brigade ‘took steps to satisfy themselves that all fires had been extinguished and that there was no residual danger, and they left the scene about 20 minutes after the initial explosion without inspecting the plaintiffs’ premises’.  The fire was not in fact extinguished and smouldering debris reignited the fire damaging the plaintiff’s premises.
  3. The third case involved a fire in a chapel.  Some fifteen appliances attended the fire but were unable to effectively fight the fire due to a lack of water.  ‘No less than seven fire hydrants surrounded the Chapel. Of these, four failed to work for one reason or another, and three were either never found, or found so late as to be of little use. One hydrant was not located until a late stage because there was no yellow marking sign: another was not found at all because the yellow hydrant sign was obscured by ivy. In the end, water had to be obtained from a mill dam over half a mile away. In the result, says the plaintiff, a fire which could and should have been contained in the adjacent classroom, burnt down not only the classroom but the entire Chapel as well.’  The action against the West Yorkshire fire brigade turned on their duty, imposed by the Fire Services Act 1947 (UK), to inspect and maintain the hydrants and for simply failing to locate some of the hydrants that were available.

The court (Lord Justice Stuart-Smith; Lord Justice Potter and, the appropriately named, Lord Justice Judge) said

In our judgment the fire brigade are not under a common law duty to answer the call for help and are not under a duty to take care to do so. If therefore they fail to turn up or fail to turn up in time because they have carelessly misunderstood the message, got lost on the way or run into a tree, they are not liable.

But what if they do attend?  Do they then owe a duty of care?  Again the answer was ‘no’:

In our judgment, a fire brigade does not enter into a sufficiently proximate relationship with the owner or occupier of premises to come under a duty of care merely by attending at the fire ground and fighting the fire; this is so, even though the senior officer actually assumes control of the fire-fighting operation.

In light of this there was no liability in the 2nd and 3rd case, above, but the first one was different; the first case was ‘one where the defendants, by their action in turning off the sprinklers, created or increased the danger. There is no ground for giving immunity in such a case.’

The gist of the decision is that the fire brigade are under no duty to attend, and if they do attend they are under no duty to do anything in particular, but they are under a duty not to make matters worse than if they had not turned up at all.  Had the Hampshire brigade not turned up, the damage to the building would have been less!

One can see the problem for the Tasmania Fire Service.  If they unreasonably turned the sprinkler off, and by doing so made the damage worse, they are not given any common law protection.  We can also see, however, that the case has its differences.  The power was connected to the building and fire fighters were standing in water and at risk of electrocution.  The fire service has a duty to its own employees and so may well have needed to turn off the sprinklers for that reason.  Deciding what is ‘reasonable’ always requires balancing competing duties, so it may not have been reasonable for the Hampshire brigade to turn off the sprinkler, but perhaps it was reasonable to turn them off in Tasmania.    Here the plaintiff is also alleging negligence in the way the fire service approached the electrical authorities to get them to turn off the power.  The coroner found that the power could have been turned off in one of three ways. Two involved a person attending the scene and would take some time, the other involved the power company shutting down the whole area which they did when they were finally asked to do so.  This would appear to be the basis for the allegation, reported in the Mercury; that ‘the TFS known how to effectively disconnect power to the site there would have been no reason to disconnect the sprinkler system as it did.’

The decision in Capital and Counties does not, therefore, determine the matter .  The ruling in the UK is not binding on an Australian court so they may find that the law is different in Tasmania.  Even if they find the law is the same they will still have to decide whether or not in all the circumstances the decisions of the Tasmanian fire fighters was reasonable.  The case is not identical to the UK case.  These will be the critical issues of law that the trial judge will have to decide.

The other critical issue for the court will be determining how s 121 of the Fire Service Act 1979 (Tas) affects the liability in this case.  That Act said, at the relevant date:

121. Liability of Commission, &c.

(1) Where any person dies or sustains injury or damage and the death, injury, or damage is wholly or partly attributable to –

(a) the failure of the Commission or a brigade or an officer, fire-fighter, employee, or agent of the Commission or a brigade to perform or properly perform any function imposed on it or on him by or under this Act;

(b) the improper exercise by the Commission or a brigade, or by any officer, fire-fighter, employee, or agent of the Commission or a brigade, of any power conferred on it or on him by or under this Act; or

(c) the contravention by the Commission or a brigade or any officer, fire-fighter, employee, or agent of the Commission or a brigade, of any provision of this Act or the regulations, being a provision that prohibits, whether conditionally or unconditionally, the Commission, brigade, officer, fire-fighter, employee, or agent from doing any act –

the Commission shall, except as provided in subsection (2) and subject to the defences and other incidences ordinarily applicable in proceedings in tort, be liable in tort in respect of the death, injury, or damage, but no such brigade, officer, fire-fighter, employee, or agent shall be so liable unless it is proved by or on behalf of the plaintiff that the brigade, officer, fire-fighter, employee, or agent in failing to perform or properly perform a function referred to in paragraph (a), in the improper exercise of a power referred to in paragraph (b), or in contravening a provision referred to in paragraph (c), acted, or, as the case may be, failed to act, in bad faith.

(2) Subject to subsection (4), the Commission is not liable for any death, injury, or damage if the death, injury, or damage is attributable wholly or partly to any act or failure to act by a brigade or an officer, fire-fighter, employee, or agent of the Commission or a brigade if the act or failure to act occurred in the course of, or was directly connected with, any operation specified in subsection (3) unless it is proved that the brigade or the officer, fire-fighter, employee, or agent of the Commission or a brigade acted, or, as the case may be, failed to act, in bad faith.

(3) The operations referred to in subsection (2) are those directed to extinguishing, or preventing the spread of, a fire or reducing the risk of a fire occurring, or to the training of persons in the carrying out of any of those operations.

(4) Nothing in subsection (2) affects any liability of the Commission under the Workers Rehabilitation and Compensation Act 1988 or any duty of the Commission at common law towards any member of the Fire Service.

(5) Every member of a brigade is taken to be a member of the Fire Service for the purposes of this section whether or not the person receives any remuneration as such member.

That section would appear to be a complete defence.   In the Capital and Counties case, the court also considered a section that provided immunity for acts done in good faith.  They held that the section ensured that fire fighters, who were given extraordinary powers to do things at the scene of a fire, such as disconnect utilities and force entry into premises including premises that are not on fire. Such actions may ‘injure’ the interests of others but are necessary to stop the spread of fire. The provisions of the UK legislation were intended that there would be no liability for these actions, but, said the court, that still required the actions to done ‘reasonably’.  The section they were considering did not extend to provide a defence where the damage caused was negligently caused.

The Australian courts have reached similar decisions, (see my book Emergency Law (3rd ed, Federation Press, 2010), pp 214-222).  These cases have however dealt with sections that were not as comprehensive as the Tasmanian Act.  According to the report in the Mercury,

The plaintiffs say the State Fire Commission, responsible for the Tasmania Fire Service, and its chief officer are not immune from liability under the law.

This is because, according to Myer, the defendants are not protected under the law.

The argument in court yesterday revolved around whether or not legislation protected the service and its officers from liability at the time of the fire.

Lawyers for the Commission and the former Chief Officer John Griffiths SC and Solicitor-General Leigh Sealy SC say their clients are immune to civil liability.

After the fire the State Government said it would introduce legislation to rule out the possibility of future potential liability but is yet to do so.

The basis of that argument is unclear. According to the official Tasmanian law site (http://www.thelaw.tas.gov.au) s 121 was in place in 2007.  The exact basis upon which the plaintiff’s argue that it does not apply in this case we cannot know from the paper.

What we do know is that the Courts do not like sections that purport to limit the right of people to recover, and that thereby protect negligent defendants, and they will read them as strictly, and as narrowly as the words will allow (see Board of Fire Commissioners v Ardouin (1961) 109 CLR 105).  It follows that if counsel for the plaintiff could make an argument the court would be willing to hear it rather than just dismiss the case out of hand.

Interestingly enough these issues about the duty of care of a fire brigade and the impact of the statutory immunity clause will, I predict, be central in the litigation arising out of the 2003 Canberra fires.  The State of NSW has already tried to get one matter struck out on the basis that the common law identified in Capital and Counties, and the Rural Fires Act 1987 (NSW) s 128 guaranteed that the plaintiff could not win (NSW v West [2008] ACTCA 14).   The ACT Court of Appeal refused to dismiss the matter on the basis discussed above.  Statutory immunity clauses are read narrowly and the application of Capital and Counties in Australia has not been determined so it would have been wrong to strike the matter out without hearing all the evidence to see how the law applies to the facts.  Accordingly that case was allowed to proceed and we now wait for the judgement in that matter.

It may be that, as in Capital and Counties, if the timing is right and the parties are sufficiently motivated, appeals from these decisions, and perhaps from cases arising out of the Black Saturday fires, may all end up in the High Court of Australia to be heard together because ‘they raise similar questions of law, in particular whether and if so in what circumstances a fire brigade owes a duty of care to the owner or occupier of premises which are damaged or destroyed by fire.’

Michael Eburn

22 March 2012.