A firefighter with Fire and Rescue NSW asks:

Section 11 of the Fire Brigades Act relates to responses & states that FRNSW must “…despite anything to the contrary in any Act, proceed with all speed to the fire…” I am at a permanently manned station & have 2 Retained stations within 10-12km. When calls are in the adjoining stations area they are responded because ESCAD (our response system) recognizes that they are closer. The permanently manned appliance would be quicker even though it is further distance from the incident address.

Is FRNSW complying with the Act when they respond a closer resource distance wise rather than the quickest timewise?

The answer is ‘yes, FRNSW are complying with their statutory obligations’.

Section 11 of the Fire Brigades Act 1989 (NSW) says:

When there is an alarm of fire, a fire brigade must, despite anything to the contrary in any Act, proceed with all speed to the fire and try by all possible means to extinguish it and save any lives and property that are in danger.

In an earlier post (The inter-relationship between emergency services and other legislation (September 24, 2015)) I said:

This section can be traced back to the Fire Brigades Act 1884 (NSW). The reference to ‘all possible speed’ back in 1884 may or may not have had reference to such things as ‘speed limits’. Today however, one could not read the Act as authorizing fire brigades to operate without reference to the road rules in order to ‘proceed with all speed’. For example, it may be quicker to proceed now rather than wait for a sober and competent driver but that would not justify driving unlicensed, whilst intoxicated or at a speed dangerous to the public.

Some statutory provisions impose a ‘duty’ on a statutory authority.  Sometimes a person who suffers a loss can sue for ‘breach of statutory duty’ but only if it is clear from the Act that the parliament intended to give individuals a right to a private remedy. In other cases the only remedy may be an action to require an authority to perform its duty under the Act.  Sometimes the provision is just a general statement setting out the intended direction of the agency.  Section 11 falls within that last category.

In Bennet and Wood v Orange City Council (1967) 67 SR(NSW) 426 the plaintiffs sued the Council for negligence – the council, in turn, joined the Commissioner for NSW Fire Brigades alleging that they were liable for failing to proceed with ‘all speed’ as required by the then Fire Brigades Act 1909 (NSW) s 28.    The court held that the section gave rise to no private right of action, that is it was not intended that anyone could sue for failing to comply with the section – the headnote (a summary but not a part of the court’s reasons) says that the effect of the case was to hold that section 28 was ‘merely descriptive of the obligations of the Board…’ (p 426).     In essence s 28 (and now s 11) are there to remind the Commissioner what the fire brigades are supposed to do and what his job is, but it doesn’t give rise to an actual legally enforceable obligation.

Even if there was an obligation the section can’t be read literally.  If it was all fire appliances would be racing cars and fire appliances would run over pedestrians on their way to fires because stopping either to let them cross or to attend their injuries would reduce the speed of the response.  To procced with ‘all speed’ has to be read as with all practicable or reasonable speed and that has to take into account the allocation of resources – ensuring that coverage continues across the Fire District, the traffic at a given time of day, keeping a separation so appliances don’t run into each other when proceeding to a fire etc.

If the brigades could not despatch a closer retained crew, even though they may take longer than a permanent crew that is already ‘on station’ but further away then there would be no point in keeping a retained station.  Alternatively the permanent crew would be sent to every fire and retained firefighters then called up to provide ongoing coverage – a rather unsatisfying role for the retained firefighters.    Rather the reference to ‘all speed’ has to be read as taking into account the time it takes for the retained firefighters to get to the station and then turn out.   That it takes time for that to happen does not mean they are not responding with all ‘reasonable’ speed for that particular station.

Conclusion

Section 11 of the Fire Brigades Act 1989 (NSW) is descriptive and does not impose any obligation that can be enforced by a person who is aggrieved that the brigades did not respond quickly enough.  The reference to ‘all speed’ has to be read as ‘all reasonable speed’ and that has to take into account all the circumstances including that the area where the fire occurred is protected by a retained rather than permanent fire crew.

FRNSW is meeting its obligations if it chooses to respond a’ closer resource distance wise rather than the quickest timewise’.