Justice Blow has handed down his decision in Myer Stores Ltd v State Fire Commission  TASSC 54 (see also my earlier post, put up when the hearing started: Myer v Tasmania Fire Service). The fire started in a roof void and was initially controlled by the automated sprinkler system. The system was turned off before the source of the fire had been located and the building was destroyed.
As I noted in my earlier post, this case raised at least two very important legal issues. The first was the effect of s 121 of the Fire Service Act 1979 (Tas) which says:
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.
If this section did not provide a defence, the court would have to consider whether or not the fire brigades actually owed a duty of care to property owners, or whether their duty was owed to the community at large (see also the discussion on Warragamba Winery Pty Ltd v State of New South Wales  NSWSC 701).
In this case the parties agreed that Blow J should determine the effect of s 121. To do that he was invited to assume that all the plaintiff’s allegations could be proved and, on that basis decide whether either:
(a) the State Fire Commission; and/or
(b) the Chief Officer of The Tasmania Fire Service, were protected by the immunity provided by s 121.
The plaintiff’s submissions were interesting. They argued that s 121 had nothing to do with tort law but injury or loss the Commission ‘shall’ be liable even in circumstances where they would be liable under common law. That is they argued that the section was intended to expand, not restrict the Commission’s liability.
With respect to the Chief Officer they argued that he was not an ‘officer’ of the Tasmania Fire Service and therefore was not covered by s 121. Both these arguments failed.
With respect to s 121, Blow J said the purpose or object of the section ‘… was to confer immunities and create an exception, not to create a new liability for brigades and individuals…’ The effect was:
- To confer legal immunities on TFS personnel, except in cases of bad faith,
- Ensure that the Commission is vicariously liable for its staff (regardless of their legal relationship); and
- To provide immunity to the Commission for ‘deaths, injury and damage attributable to the acts and omissions of TFS personnel, not involving bad faith, in fire-fighting, risk reduction and training operations.’
The plaintiff further argued that even if s 121 did give immunity for the torts of the staff, it did not extend to protect the Commission if the Commission was negligent. In this case it was alleged the Commission was negligent for failing to properly train the fire fighters in how to deal with a high rise fire and how to arrange to have the power disconnected. Because this allegation was that the Commission was negligent, not the fire fighters, it was argued s 121 did not apply. His Honour accepted that argument to a limited extent, he said
…there is no reason to give s121(2) an interpretation that is inconsistent with its ordinary literal meaning. The subsection is applicable if death, injury or damage “is attributable wholly or partly” to an act or omission by a brigade or by certain individuals. If a death, injury or damage is attributable to a tort of the Commission, but not partly to an act or omission of a brigade or individual within the scope of the subsection, then the subsection confers no immunity on the Commission. But if any death, injury or damage is attributable partly to a tort of the Commission, and partly to an act or omission by a brigade or individual within the scope of the subsection, then the Commission has no liability.
In other words, if the Commission is the only wrongdoer the section doesn’t apply but if responsibility is ‘wholly or partly’ due to an act or omission of an agent of the Commission (which would seem to cover pretty much all imaginable situations) then the immunity applies.
In his conclusion Blow J said:
‘… the relevant damage, even if attributable partly to [negligence] … in relation to planning and training, was at least partly attributable to acts and omissions of officers and fire-fighters during the operation directed to extinguishing, or preventing the spread of, the Myer fire, ie during an operation within the scope of s121(3). It follows that the Commission must be entitled to the immunity provided by s121(2).’
With respect to the Chief Officer the argument was that ‘the Chief Officer does not fall within the class of persons who are exempted from liability by s121(1), ie that he is not “an officer, fire-fighter, employee, or agent of the Commission or a brigade” within the meaning of the subsection.’ This argument was based on the statutory relationship between the Chief Officer and the Commission.
The Court found that the Chief Officer was subject to the direction of the Commission and was therefore an ‘agent’; he was appointed to the Government service and was subject to the direction of the Commissoner, the Minister and the public sector Code of Conduct and was, therefore, ‘an “employee” for the purposes of the Act’. As for being an officer, ‘officer’ is defined in the Act and ‘if the definitions in s3(1) were applied literally, the Chief Officer would not be an “officer” because he is neither a group officer, nor a brigade chief, nor a fire officer’ but in Blow J’s opinon s 121 was not so limited.
The apparent purpose of the immunity provision in s121(1) is to relieve TFS personnel from liability, except in situations involving bad faith, whatever their rank or position in the chain of command. There is no reason why the Chief Officer, alone amongst the personnel of the TFS, should be personally liable for acts or omissions in good faith. And it would be absurd if the Chief Officer, the chief executive officer of the TFS, was, as a matter of law, not really an officer at all.’
Accordingly it was held that the Chief Officer was an employee, and agent and an officer and therefore protected by s 121.
As a result, His Honour found that even taken the plaintiff’s case at its most favourable, the Commsision and the Chief Officer were protected by s 121 and could not be liable.
His Honour was not asked to consider the issue of whether or not there was a duty of care owed to Myer as the occupier of the building. Given his findings on s 121, even if there was there could be no liability for the actions taken when fighting the fire given there was no suggestion of bad faith. Subject to any appeal this would appear then to be the end of the matter and again the fire brigades were not liable.
As a more general statement of principle, and important given discussions that have occurred elsewhere on this blog site, His Honour, after looking at the history of fire brigades legislation and the provisions that limit liability and deem that damage done by fire brigades is deemed to be damage done by fire, said:
At least in relation to property damage, legislation in this State since 1920 had reflected a policy that the financial burden of unfortunate operational decisions should be borne by insurers, or by the uninsured. That seems possibly to have been a quid pro quo for the State providing fire-fighting services which, in times long past, were provided by insurance companies, and not at the expense of the public.
We are all at risk of losing our homes by fire, the fire brigades will come to try to limit the spread of fire to minimise the losses, but the risk that your property will burn is in fact your risk, or, if you want to spread the risk, your insurer’s risk. The fire brigades may come and put out the fire but they are not legally responsible to pay for the damage caused by the fire or by their actions.