In Hamcor Pty Ltd & Anor v State of Qld & Ors  QSC 224 (Dalton J) the State of Queensland was sued over the response by Queensland Fire and Rescue (as it was) to a factory fire in August 2005. .
A fire broke out at the plaintiff’s chemical factory just after 10pm on 25 August 2005. The Queensland Fire and Rescue Service (QFRS) responded promptly. The response, the subject of the litigation, was that the QFRS poured a very large quantity of water onto the fire. This water mixed with the chemicals and ran off the property causing a hazardous materials incident. Much of the water soaked into the land with the effect that the land became dangerously contaminated. The plaintiff was required to clear up the contamination, a clean-up that cost in excess of $9 million, much more than the land was worth.
The plaintiffs’ complaint (at ) was that:
… it was negligent to attempt to extinguish this fire with water: chemical fires cannot be extinguished with water. It was said by the plaintiffs that the proper approach to the fire on this site was to simply let it burn itself out whilst being vigilant to extinguish any spread of the fire outside the site. It is pleaded, that without the vast quantities of water applied in an attempt to extinguish the fire, the cost of remediation of the land would have been far less than it is.
It was argued that instead of water, the QFRS should have used foam to try and control the fire. The judge (at ) said that she was:
… satisfied that the need for foam was recognised … as early as it reasonably could have been. Further, I find that there was no chance of transporting a sufficient quantity of foam to the site in time to use it in this window of opportunity… Further, I am satisfied … that there was no point in trying to extinguish the fire with foam after about 10.35 or 10.40 pm. By this time the Northern building was well alight, the blaze was of such a size that it was most unlikely that enough foam could have been obtained to use it effectively. As well, it was impossible by that stage to use foam. For foam to be effective in extinguishing a fire, it must be applied to the seat of the fire, and it was not safe to go close enough to this fire to do so.
Water was also going to be ineffective. ‘It was the unanimous expert opinion that there was no point in applying water to extinguish the fire’ (). Although water was not going to extinguish a fire this hot and fuelled by chemicals, it was reasonable to use water to protect a large LPG tank, solvent tank, and unaffected office building to prevent them being involved in the fire. Even so, the Incident Controller who was in charge from 11pm to 8am the next day, arranged for ‘massive quantities of water’ to be ‘applied on and around the fire’ (). The IC could not explain his reasons for applying water or the objective he was trying to achieve. The Court found (at ):
There was no such specific aim or objective here, other than a general, and I find misplaced, view that water applied in high volume to buildings which were well alight would somehow cool and limit the fire.
The reasonable and really only practical response was to protect the surrounding structures, which they did, and otherwise allow the fire to burn itself out. Despite the amount of water that poured onto the fire, that is in effect what happened: ‘One of the things the conference of experts agreed upon was that the fire reached a point of control, but it was not … brought under control’ ().
The Court found, therefore that the response, of pouring massive amounts of water onto the fire, was not a reasonable response to the fire, but that of course, is not the end of the matter. As is well known, to establish negligence the plaintiff has to establish that the defendant
- Owed the defendant a duty of care;
- That the defendants actions (or omissions) were not reasonable in the circumstances and
- That failure caused the plaintiff’s losses.
The judge’s findings of facts (discussed above) established only point 2, above, ie the response was not ‘reasonable’ in the circumstances. We can now turn to the areas of interest to this blog, the judges’ rulings on the law.
Duty of care
I have discussed before that the general line of authority suggests that the fire services do not owe a duty of care to individuals due to their broader obligations to the community (see for example, ‘Further discussion on the fire brigades ‘duty of care’’ (15 August 2012)). The starting point for this argument has been Capital and Counties v Hampshire Council  QB 2004 where the UK Court of Appeal 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.
In this case Dalton J rejected the principal from Capital and Counties. She relied on the decision of the High Court of Australia in Ardouin v Board of Fire Commissioners (NSW) (1963-1964) 109 CLR 105. This case involved an accident between a motorcycle and a fire appliance proceeding on the way to a fire. The gist of the case was that the ‘good faith’ protection clause did not apply when driving a vehicle on the road as that was not exercising any special power. On its face that would seem to have no application here but Her Honour noted (at ) that during the course of their judgment Justices Kitto and Taylor
… made quite lengthy and considered observations which expressly, and by necessary implication, state that a fire brigade is under a common law duty to those whose interests it might harm when exercising its fire-fighting functions.
Further a clause like s 46 of the Fire Brigades Act 1909 (NSW) (see now Fire Brigades Act 1989 (NSW) s 78 or Fire and Emergency Services Act 1990 (Qld) s 153B) which say that a person or brigade is not liable for acts done in good faith can only have application if they would otherwise be liable, and they would only be liable if there was a duty of care owed. Dalton J was able to point a Scottish case (Burnett v Grampian Fire and Rescue Service  S.L.T. 61) that had come to a different conclusion to the English court in Capital and Counties and she went through a detailed analysis of the reasoning in Capital and Counties (which I won’t try to summarise) to reach the conclusion that she should not accept Capital and Counties as representing the law in Australia.
Dalton J went on to say that even if Capital and Counties did reflect the law in Australia, this case came within that part of the decision, that if the brigade had not turned up and just let the building burn (given they were always going to be a total loss) the plaintiff would have been better off. Either way the plaintiff was going to lose the factory, because of the brigades’ actions not only was the factory lost but the land was contaminated and rendered unusable until $9 million worth of remediation action was carried out.
Given that, in his view, Capital and Counties does not represent the law in Australia, Dalton J had to consider whether she should find a duty of care. She said that she would because:
- The damage to the plaintiff’s property was foreseeable and in fact QFRS were clearly aware of the risk and did take action to try to contain the water run off and did seek scientific advice on the contamination (); and
- Although the QFRS were not in control of the fire they were in control of the response , that is the situation was one ‘where the QFRS had control, responsibility and expertise, and the plaintiffs were reliant or dependent on that’ ().
Accordingly Dalton J came to the conclusion that:
… the first defendant [the State of Queensland on behalf of QFRS] owed a duty to the plaintiffs to take reasonable care not to damage their property when acting to combat a fire and hazardous materials emergency on the plaintiffs’ land.
As noted above, Dalton J was of the view that QFRS breached its duty of care to the plaintiff. She said (at ):
In my view the QFRS breached its duty to the plaintiffs in applying large amounts of water to areas of the plaintiffs’ land other than the LPG cylinders and solvent tank, and other than the firewall and drums under, and in front of, the awning.
The next step was to determine of the negligence of the QFRS caused the plaintiffs damage. This was complex as not all of the actions of the QFRS were unreasonable. In particular spraying water onto the LPG and Solvent tanks and the office was reasonable. Had the QFRS acted ‘reasonably’ there would have been water in the area with resultant contamination, how much worse it was the judge could not determine. There was also issues about the factory itself and the precautions that were, or were not, in place to capture water and chemicals that may have run off in any event.
The judge was critical of the evidence led to establish the damage that occurred, but would not have occurred, had the QFRS response been ‘reasonable’ and she made no finding on how much the State would be liable for had the plaintiffs won.
A verdict for the defendant
The judge did not fully address the issue of damage as she did not need to because, even though she found that the QFRS did owe a duty of care and their response did not meet the legal test of ‘reasonableness’ she found there was no liability – why not?
Civil Liability Act 2003 (Qld) s 36.
This section says:
(1) This section applies to a proceeding that is based on an alleged wrongful exercise of or failure to exercise a function of a public or other authority.
(2) For the purposes of the proceeding, an act or omission of the authority does not constitute a wrongful exercise or failure unless the act or omission was in the circumstances so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.
(This section is similar to the Civil Liability Act 2002 (NSW) s 43, to which I will return in the discussion, below).
The QFRS argued that the decision to douse the area with water was not ‘so unreasonable that no [fire fighting authority] could properly consider the act or omission to be a reasonable exercise of its functions’ and as such they were protected by s 36. Dalton J rejected that as she said s 36 did not apply. If it did apply it would have been a defence as, apart from the Incident Controller, there were many senior fire fighters at the scene. Had the decision of the IC been so unreasonable that no other firefighter would think it was a reasonable action, they would have raised that, and they did not. Accordingly, although the decision was ‘negligent’ it did not reach the ‘gross negligence’ threshold required to take it outside s 36 (see ).
So why did s 36 not apply? This was because, in Dalton J’s opinion, the section only applied where the allegation was a breach of statutory duty, that is where is it alleged that a statute, like the Fire and Emergency Services Act 1990 (Qld) required the service to do, or not do, something and the alleged fault lay in failing to comply with that statutory obligation. Her Honour’s reasoning is technical and depends on a distinction that perhaps only lawyers can see between a breach of a common law duty and a statutory duty; but s 36 is headed ‘Proceedings against public or other authorities based on breach of statutory duty’ and the proceeding in this case did not depend upon some statutory obligation to take action but a common law action based on the close relationship between the plaintiff and defendant, that is when:
… the QFRS attended the plaintiffs’ land and began exercising its statutory powers to protect against fire and hazardous materials emergency there was sufficient closeness and directness in the relationship between it and the plaintiffs, as owners of the property which was on fire and which was the source of, and vulnerable to, the hazardous materials in question, to establish a common law duty …
It was failure to meet the standard required by the common law duty, not because of an obligation said to arise in the statute, that was the basis of the cause of action and so s 36 did not apply. If, however, s 36 was relevant then it would have provided a defence (see ).
Fire and Rescue Service Act 1990 (Qld) s 129.
This was the defence that worked. This section said:
No matter or thing done or omitted to be done by any person pursuant to this Act or bona fide and without negligence for the purposes of this Act subjects that person to any liability
Dalton J agreed that section had two tests. It should be read as:
- No matter or thing done or omitted to be done by any person pursuant to this Act subjects that person to any liability; and
- No matter or thing done or omitted to be done by any person bona fide and without negligence for the purposes of this Act subjects that person to any liability. (See -).
The court found that the State of Queensland is a legal ‘person’ so the section could apply (). A critical issue was whether the relevant actions of the QFRS were done ‘pursuant’ to the Act or ‘for the purposes of the Act’. If they were acting ‘for the purposes of the Act’ then s 129 would provide no defence as the acts, although bona fide, they were negligent.
Her Honour found however that the actions of the QFRS were done pursuant to the Act that is the fire fighters were exercising their powers under s 53 of the Act that sets out the powers of an authorised officer in a dangerous situation. Although the section does not say an authorised officer may put water on a fire, it does say the officer ‘may take any reasonable measure— (a) to protect persons, property or the environment from danger…’ The plaintiff argued that the finding that the actions of the IC were not reasonable meant that he was not acting pursuant to s 53 which only allowed ‘reasonable action’. With some complex reasoning, Her Honour found that the use of the word ‘reasonable’ in s 53 had a different meaning to the use of the word in negligence law. Here the word related to action by ‘authority to act of the executive arm of government. The executive has authority to act so long as it does not act unreasonably’ in the way the term is applied in the Civil Liability Act that is in a way that is so unreasonable that no one would consider it a legitimate exercise of their power.
In summary in deciding what action to take under s 53 the QFRS had a broad discretion and provide their action was not grossly negligent, then it was ‘reasonable’ for the purposes of that Act, even if it did not meet the common law meaning of the word.
The application of water by the QFRS in this case was something for which it needed the authority of s 53(1) of the FRS Act. Water was applied in enormous volumes and at a spectacular rate because the QFRS was able to access the fire hydrants and water mains in a way which no ordinary citizen could do. In applying water as it did, the QFRS was using its special statutory powers to deal with an emergency. This application of water was something which of its nature involved large-scale interference with property of others. In my view, the application of water by the QFRS was something done pursuant to the FRS Act …
and so s 129 provided a defence and defeated the plaintiff’s claims.
Conclusion on Hamcor Pty Ltd & Anor v State of Qld & Ors  QSC 224 (Dalton J)
That ends a summary of the decision in that case. In short the court found that
- There was a duty of care;
- The response by QFRS was not a reasonable response; but
- There was no liability because of the defence offered by the Fire and Rescue Service Act 1990 (Qld) s 129 as it then was.
If you are simply interested in the result in this case you can stop reading here; but what follows is further discussion on legal issues that arise from the decision.
Discussion on legal and ancillary issues
The status of Capital and Counties v Hampshire Council  QB 2004
As discussed above, the English decision in Capital and Counties v Hampshire Council (‘Capital and Counties’) held that fire brigades do not owe a common law duty of care to those that may request their assistance. This is an English case and therefore not ‘binding’ on the Australian courts, but is it the law? We now have one case, Warragamba Winery v NSW where a court agreed that there was no duty of care; and two, Electro Optics and West v NSW and now Hamcor v Queensland where the courts have found that there was a duty of care. Do fire brigades owe a duty of care to those that call for their assistance?
In Warragamba Winery v NSW  NSWSC 701 Walmsley AJ in the NSW Supreme Court found that the NSW Rural Fire Service did not owe a duty of care to 15 landowners whose properties were destroyed by bushfire on Christmas day 2001. Walmsley AJ relied on the reasoning of McHugh J in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 (a matter to which I will return); but he also found the reasoning in Capital and Counties ‘persuasive’ (at ).
In Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at  McHugh J said that when deciding whether a statutory authority, like a fire brigade, owed a duty of care, the court should ask the following six questions:
- Was it reasonably foreseeable that an act or omission of the defendant … would result in injury to the plaintiff …?…
- … did the defendant have the power to protect … the plaintiff (rather than the public at large) from a risk of harm? …
- Was the plaintiff … vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself …? …
- Did the defendant know, or ought … to have known, of the risk of harm to the … plaintiff … ? …
- Would such a duty impose liability with respect to the defendant’s exercise of “core policy-making” or “quasi-legislative” functions? …
- Are there any other supervening reasons in policy to deny the existence of a duty of care (e.g., the imposition of a duty is inconsistent with the statutory scheme … ? …
If the answers to questions 1-4 are ‘yes’ and the answers to questions 5 and 6 are ‘no’ then one should find that there is a duty of care. Walmsley AJ agreed that failure by the RFS to fight the fire or warn the resident could result in injury but the plaintiffs were not vulnerable as they could take steps to prepare their properties for fire and there were other ‘supervening reasons’ not to impose a duty in particular the services obligations to the entire state.
(I should also say that Walmsley AJ also took comfort from the fact (at ) that ‘There is also academic writing showing no liability such as urged here has been held: Eburn: Emergency Law, 2nd ed (2005) Federation Press, Chapter 6 “Liability of Emergency Services”; Booth and Squires: The Negligence Liability of Public Authorities (2006) Oxford University Press, Chapters 10 and 12; Stewart and Stuhmcke: Australian Principles of Tort Law, 3rd ed (2012), Federation Press, 8.6.’)
In Electro Optics and West v NSW  ACTSC 184, the litigation arising out of the 2003 Canberra Fires, Higgins CJ (Chief Justice of the ACT Supreme Court) was not so persuaded. He said
Indeed, in my view, the case of Capital & Counties plc v Hampshire County Council and the general view that police and fire services owe no duty to respond to persons in danger where they are trained and able safely to respond is clearly inconsistent with public expectations and the intent shown by the legislative provisions imposing positive duties on such services to protect the public .
His Honour did not explain how ‘public expectations’ are determined or how they form the basis of a legal conclusion nor does he indicate which ‘legislative provisions’ he’s relying on as imposing a positive duty to act.
Where does that leave us? These are all decisions of single judges hearing the initial trial. These do not represent binding legal precedent, but we have a case where a judge of the NSW Supreme Court found Capital and Counties persuasive but did not actually rely upon it to come to his conclusion that there was no duty of care; a judge of the ACT Supreme Court rejected Capital and Counties but did not but did not fully explain his reasons; and a judge of the Queensland Supreme Court also rejected the principal of Capital and Counties (that the brigade owed no duty of care) but if Capital and Counties did apply this fell within the rule that there is a duty not to make the matter worse, so he didn’t actually have to decide the point. The result is that the status of Capital and Counties, and the question of whether or not a fire brigade owes a duty of care, is unresolved.
The problem with tort law is that it is so fact specific. It’s easy to think that where a service like the NSW Rural Fire Service is faced with fires across the state, limited resources and many communities at risk (as in Warragamba Winery) that they can’t be held to owe a duty to particular individuals who are not, at the time decisions are being made, actually under direct threat of fire. Equally it does seem anomalous to think that a brigade that is at the scene of a large, but contained fire (ie not multiple fires across a large area) and where the person ‘at risk’ is clearly identifiable as the occupier of that property, does not owe a duty to act reasonably in trying to contain the fire at least so as not to make the situation worse. The question of whether or not there is a duty of care cannot be answered in the abstract, it depends very much on the particular facts, who was doing what and who could protect whom. The Courts in Australia have said that determining whether or not here is a duty of care requires a consideration of all the ‘salient features’ of the relationship between the parties and in summarising the case law, Allsop P in the NSW Court of Appeal identified a list of salient features that went from (a) to (q), ie 17 different factors that may or may not apply in any particular case (see Caltex Refineries (Qld) Pty Ltd v Stavar  NSWCA 258, - (Allsop P)).
In short if you want to know whether a duty of care is owed in a particular case you have to consider those 17 factors (but perhaps not all of them, and perhaps others, depending on the particular facts) and then the court has to decide whether in all the circumstances they should impose a duty of care. It means it is impossible to know, in advance, whether or not a duty of care is owed in new or novel cases such as Hamcor.
Perhaps none of it matters as Dalton J said and the real issue is not whether a duty was owed but whether or not the defendant’s actions were reasonable in the circumstances. Walmsley AJ in Warragamba Winery found that the actions of the NSW RFS were reasonable so even if there was a duty of care; there could be no liability. Higgins CJ (Electro Optics and West v NSW) and Dalton J (Hamcor v Queensland), on the other hand, found that the conduct of the brigades did not meet the common law standard of ‘reasonable care’ so but for other defences there would have been liability.
Firefighters and others often express concern about the risk of personal liability. All the cases involving fire brigades have involved the State except for the Tasmanian case of Myer v State Fire Commission  TASSC 54 where because of the structure of the Commission, it was the Commission rather than the State of Tasmania that was sued. But in no case has it ever been suggested that an individual fire fighter could or would be liable for their actions. Everyone should take comfort from that.
All fire and emergency service legislation has some provision that protects workers and, depending on the language, the service from liability for acts done in good faith. In:
- Warragamba Winery, Walmsley AJ said that if he had found that there had been negligence, s 128 of the Rural Fires Act 1997 (NSW) would have provided a defence.
- Myer v State Fire Commission, Blow J did not consider whether there was a duty of care or whether the conduct of the fire service was reasonable or not. He determined that even if negligence was established, s 121 of the Fire Service Act 1979 (Tas) would provide a defence.
- Electro Optics and West v NSW Higgins CJ found that the Civil Liability Act 2002 (NSW) provided the relevant defence, but if it did not, s 128 of the Rural Fires Act 1997 (NSW) would have provided a defence; and
- Hamcor v Queensland s 129 of the Queensland Fire and Rescue Service Act 1990 (Qld) provided the relevant defence.
These sections have proved quite effective in protecting the fire services and the state from liability for the actions of their fire service; but a word of warning for Queenslanders…
Section 129 said
No matter or thing done or omitted to be done by any person pursuant to this Act or bona fide and without negligence for the purposes of this Act subjects that person to any liability
The Court had to split that section because a section that says there is no liability for an action that is ‘bona fide and without negligence’ is pointless. Of course there is no liability if the Act is done without negligence.
The Fire and Rescue Service Act has recently been amended and it is now the Fire and Emergency Services Act 1990 (Qld). Section 153B(1) says ‘No liability attaches to any person for an act done, or omission made, honestly and without negligence under chapter 3.’ If that had been the Act in 2005 it would not have provided a defence as the court found the action of Queensland, through the fire service, were negligent. I have previously written on the Queensland liability protection provisions. Although it worked in Hamcor, the reference to ‘without negligence’ at least makes them confusing, at worst makes them a pointless waste of time (see ‘A further review of the Malone Inquiry into the Queensland Rural Fire Brigades’ (11 June 2013)).
Civil Liability Act 2003 (Qld) s 36; Civil Liability Act 2002 (NSW) s 43.
In Hamcor Dalton J found that s 36 of the above Act did not provide a defence, but in Electro Optics and West v NSW it was the New South Wales equivalent that, according to Higgins CJ provided the defence. The sections are not exactly the same, but in my commentary on Electro Optics, and the fact that that decision is now the subject of an appeal to the ACT Court of Appeal I said
One could appeal on the basis that s 43 only applies to duties imposed by statute but liability here depends upon duties imposed by the common law, but I would not put much faith in that issue.
Higgins CJ didn’t identify exactly what statutory authority he found the National Parks service was relying on when it made the decisions that he thought were negligent. In light of Dalton’s rulings the argument that s 43 should not have been applied in the Canberra case is now stronger than I originally thought.
Compliance with rules and procedures including AIIMS
I hear comments that suggest a belief that if one complies with prescribed rules there can be no liability but equally, if you don’t, you will be liable. That is not the case and Hamcor demonstrated that courts are much more concerned with substance over form.
The plaintiffs alleged that the QFRS were negligent when applying water in part because a HAZCHEM sign on the front gate indicated the code 3XE and, apparently, the ‘3’ indicated that the appropriate firefighting response was to use foam not water.
Further there was a HAZMAT box that contained more details of what was stored on the site and how to deal with it. The QFRS never accessed that box. The Court found nothing turned on this. The various sources would have provided no more information than the Brigade already had or obtained from other sources. Further the material in the HAZMAT box was out of date but equally nothing turned on that.
More interesting was the judge’s comments on the Australian Inter-Agency Incident Management System (AIIMS). The IC applied the AIIMS principles but, said the judge (at ):
Many of the witnesses gave evidence in relation to their understanding of what this scheme, or similar schemes, or sub-schemes provide. There were aspects of nearly all these witnesses’ evidence which struck me as a bureaucratic response: overly focussed on formal requirements in disregard of practicalities and commonsense.
One alleged failure was there was no written Incident Action Plan. Dalton J (at ) said:
To some extent the criticism that there was no written plan seems a little bureaucratic and unfortunately received an answer which also seemed a little bureaucratic – that there was a written plan – it was written on a whiteboard, – the implication was there could be no basis for criticism – the guidelines had been complied with, there was a written plan.
The point from my perspective is whether or not there was proper consideration of the objectives which the QFRS had in fighting the fire and consideration of whether the means employed would in fact achieve those objectives. Whether this is in writing or not seems to me a little beside the point.
Courts are not really concerned with ‘check box’ compliance but with what actually happens. Of course a written plan can be very helpful for communicating to others and to give evidence of the commander’s intent, if there is any relevant intent, but compliance with form for compliance’s sake is hardly ever relevant or determines the legal issues.
This has been a very long post. The short outcome is that this case gets added to the list. We now know of the following cases where the fire services have been sued for their negligent response to a fire:
- Gardner v Northern Territory  NTCA 14;
- Warragamba Winery Pty Ltd v State of New South Wales  NSWSC 701;
- Myer Stores v State Fire Commissioner (Tasmania)  TASSC 54;
- Electro Optic Systems Pty Ltd v The State of New South Wales; West & West v The State of New South Wales  ACTSC 184; and
- Hamcor Pty Ltd & Anor v State of Qld & Ors  QSC 224.
In all of the cases the defendants have won. In Gardner and Warragamba because there was no negligence, everything the services did was reasonable in the circumstances, in Electro Optics and Hamcor because even though there was negligence, the Parliament had altered the law so that services were not liable as their actions did not constitute ‘gross negligence’ and in Myer the issue of negligence was not decided because whether there was negligence or not, the statutory defence would apply.
The issue however, of if and when a fire brigade owes a duty of care remains unclear and must be determined on a case by case basis. We know that Electro Optics is on appeal to the ACT Court of Appeal and it may be that the decision of that court, which must be due shortly as the case has been heard, will help give some clarity to the law.