I’m told that

… an RFS captain was part of one of the big campaign fires within the last couple of years. He made the critical decision of pulling his crew off a property, knowing this decision would mean the property which was not prepared, worth quite a lot of money (uninsured also) would be lost, but was confident if he didn’t his crew wouldn’t have made it out. He moved onto the adjacent property which they managed to save due to the location and the preparation of that property. The one he saved, turned out to be a relative of his.

The owner of the property that was lost is making direct threats that he wants to sue this captain in civil court, suggesting he used his powers to protect a family member’s property over his. I’m positive he can’t be sued for this decision, but I just wanted to make sure and possibly find the documents that show this?

He will obviously be seeking legal advice. But I thought it could be an interesting topic. I’m aware of officers not wearing liability in the course of their duty, but when it starts to involve other family members properties, does this change anything?

There is first a critical distinction to be made between being sued, and being liable. You might think you can’t be sued for a car accident that didn’t involve you, but you can be.
Assume there is a car accident, say a simple ‘fender bender’ in a car park; one car hits another and then drives away. A bystander tries to record the registration number of the offending car but makes a mistake and writes done your number and gives it to the owner of the damaged car. Can you be sued? Of course, the owner of the damaged car can sue you, the court doesn’t know the truth, that’s what the court is there to determine. Will you be liable? That’s a different question and of course you hope your evidence that you were some where else and the witness realises that they car they saw was not yours means you are not liable, but you can be sued.

So the case at point. There is a tort called ‘misfeasance of public office’. According to Justice Dean in the High court of Australia this tort requires: (i) an invalid or unauthorised Act; (ii) done maliciously; (iii) by a public officer; (iv) in the purported discharge of his or her public duties; (v) which causes loss or damage to the plaintiff (Northern Territory v Mengel (1995) Aust Torts Reports ¶81-335).

The CCH Torts Commentary (at ¶2-080) says:

A mere bad motive or intention will not, by itself, render conduct tortious… proof of the tort of misfeasance in a public office requires that, viewed objectively, the defendant’s conduct must have constituted an abuse of the office. A public officer acting in excess of his jurisdiction will abuse his office, as will an officer who wrongfully exercises his powers or exercises them for an improper purpose.

It could be that a brigade captain who allocates resources to defend a family members home simply because it is a family members home may be exercising his powers for an improper purpose. However, in Northern Territory v Mengel (1995) Aust Torts Reports ¶81-335 Brennan J (at p 62,327) said

There can be no tortious liability for an act or omission which is done or made in valid exercise of a power. A valid exercise of power by a public officer may inflict on another an unintended but foreseeable loss — or even an intended loss — but, if the exercise of the power is valid, the other’s loss is authorized by the law creating the power. In that case, the conduct of the public officer does not infringe an interest which the common law protects.

So if the decision to allocate resources was made for the proper purpose, and if the home was not defensible and posed an unacceptable risk to fire fighters, then the decision to withdraw is proper and there can be no liability just because the home was lost or just because the home that was in fact defended belonged to a family member of the brigade captain.

Even if the decision was improper, there are other elements of the tort. The decision maker must be a public officer. This would be contested. The fact that they are not employed would suggest they are not a public officer; the fact that they have various powers for the public good (Rural Fires Act 1997 (NSW) ss 21-26) might suggest that they are.

Finally there must be ‘bad faith’. “Malice in the sense of spite or ill-will towards the plaintiff is not necessary but will suffice. Alternatively, the defendant’s knowledge that he was acting outside his jurisdiction, or with an intention to confer a benefit on a third person to the foreseeable detriment of the plaintiff, will establish the requisite bad faith.” (CCH Torts Commentary ¶2-080).

In this context if the captain, being in charge of a brigade or brigades, directed resources away from a home in order to protect his family, but with no reason not to stay and defend the other home but only because he wanted to use the fire brigade assets for his own purposes, then that could constitute misfeasance in public office. The plaintiff would have to prove all that. Merely proving that the resources were diverted and that the captain’s family member’s home was saved would not be sufficient. Where an allegation is of fraud or other serious misconduct further more convincing proof may be required to satisfy the court that, on the balance of probabilities the allegation is made out. In Briginshaw v Briginshaw (1938) 60 CLR 336Dixon J said:

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved … It is often said that such an issue as fraud must be proved “clearly”, “unequivocally”, “strictly” or “with certainty”…

In short proving that the decision was malicious and an abuse of power would be very difficult.

If the plaintiff could prove all the elements of the tort, neither the Rural Fire Service Act 1997 (NSW) s 128 or the Civil Liability Act 2002 (NSW) s 61 would help. They both protect volunteers from liability for Acts done in good faith, but it is an essential element of this tort that it is not done in good faith, so if the tort can be proved, the protection sections are, at the same time, defeated.

All of that however, goes back to my example of the car accident. Just because a person alleges certain facts, whether its that it was your car that was in the accident or that the motivation of the brigade captain was malicious, does not make it so. If there is evidence (from the Captain and the other fire fighters and the experts on fire behaviour and fire weather) that the decision to withdraw was motivated by legitimate considerations of crew safety and where the resources could be best deployed, then the tort could not be established and there would be no liability.

So in summary:
1. He could be sued, the plaintiff could go to the local court and issue a statement of claim naming the Captain as the defendant and alleging misfeasance in public office. That’s always true whether the tort alleged is negligence, misfeasance in public office or if the allegations are complete fiction.
2. Proving the elements of misfeasance in public office would necessarily require proof that the Captain’s actions were not ‘done in good faith’ so there would be no protection offered by the Rural Fires Act 1997 (NSW) or the Civil Liability Act 2002 (NSW). Such a serious allegation requires clear, or unequivocal proof, not just mere assertion.
3. It is not clear whether or not a brigade captain is a public officer. A court would have to decide that issue. Only a public officer can be liable for the tort of misfeasance in a public office.
4. If the court is not satisfied that the captain is a public officer or that acts were a malicious abuse of power, then the tort would not be proved.
5. If the decision was made because of a perceived risk to crew safety, there will be no liability even if the house were lost and even if the house defended belonged to a relative. There is no duty to rescue, Stuart v Kirkland Veenstra; there is an overriding obligation to crew safety, Work Health and Safety Act 2011 (NSW); the rural fire service does not owe a duty to individuals that can sound in damages, Warragamba Winery v NSW; and the captain is not liable for acts done in good faith, Civil Liability Act 2002 (NSW) s 61 and Rural Fires Act 1997 (NSW) s 128.
6. I would expect that if any allegation was made the Rural Fire Service would actively defend the case on behalf of their volunteer. A brigade officer facing this sort of allegation should be raising the issue with the RFS rather than trying to manage the matter on their own.

Michael Eburn
18 June 2013