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’.
Australian Emergency Law 
Great response. Also, I think people would need to remember that at the time the legislation was enacted it would have related to horses and carts and even then it would not have allowed responders to drive/ride furiously or recklessly. I love reading your articles. Regards, Stephen Graham.
I suggest also that section 11 would be “read down” so as to preserve the applicability of the Work Health and Safety Act.
It has to be ‘read down’ to preserve the Work Health and Safety Act, the Australian Road Rules, the Crimes Act, the Civil Liability Act etc. Even though it says ‘despite anything to the contrary in any Act’ it simply can’t work that way – hence the finding in Bennett and Woods that the section is a mere description – a guide to the Commissioner to remind him or her what the role of the fire brigade is.
Agreed*.
To interpret that section literally – so as to deny the operation of those acts – would be to deny firefighters the protections those acts afford.
I recall that you made this point when discussing the operation of Road Rule 306, and how “exemption” was not the applicable concept.
* I referred only to one act for the sake of brevity
Michael – there is something occurring to me about the wording of the section, which says that ‘When there is an alarm of fire, a fire brigade must, … proceed with all speed …’. This begs the question when there is an ‘alarm of fire’ for the purposes of the section, and who the section applies to. If it applies to the brigade, then the question of whether the nearest brigade in point of time was alerted is not to the point. When the brigade receives the alarm it must proceed with all speed (and I respectfully agree with you about what that means), but that’s all. The section (or another section of the Act) could have been addressed to the Commissioner and require him to pass on an alarm of fire that he receives to the brigade that can travel to the scene of the alarm the quickest; but it doesn’t.
I think if, by dint of implying a lot of words into the statute that aren’t there, one could read it as saying ‘if the Commissioner receives an alarm of fire, he must arrange for a fire brigade to attend the scene of the alarm as quickly as practicable’, the conversation would be slightly different. In that case, I would be tempted to say that whereas there may be good reasons for wanting to send a brigade that was a little further away in point of time, that’s not what the Act requires so long as it is ‘practicable’ to send the nearest brigade. But, as I say, that doesn’t seem to me to be what the legislation says.
I would be interested in your thoughts – and don’t have access to Bennet and Wood so have missed it, if this point is discussed there.
That’s an interesting interpretation, if s 11 is directed to the Brigade then it is certainly an instruction that once they are assigned a response task, their job is to proceed immediately, not wait until after lunch.
I think the wording of s 11 is a carryover from days gone past. In the 1884 Act there was a Fire Brigades Board and a Superintendent of Fire Brigades. Although the Act is a bit inconsistent (it talks about the Board establishing ‘a brigade’ (singular) but also talks about ‘brigades’ (plural)) the inference is that there were many ‘brigades’ including those run by insurance companies and volunteer brigades. In that Act it was the duty of the Superintendent of Fire Brigades to ‘with all possible speed proceed upon alarm of fire to the place where such fire is and shall control and direct the working of the Brigade’. That language was repeated in the Fire Brigades Act 1902 (NSW).
In the Fire Brigades Act 1909 (NSW) it was clear that the Board was to establish fire brigades (plural) so we can infer that each ‘station’ was a brigade. Given the expectations that there would be many brigades, that Act said (as does the current Act) that ‘A fire brigade, upon alarm of fire, shall, notwithstanding any provision to the contrary in any Act, proceed with all speed to the place where the lire is, and endeavour by all possible means to extinguish the fire, and save such lives and property as may be in danger.’ The change in language, directing ‘brigades’ and not the ‘superintendent’ is consistent with your interpretation, it’s a direction to each brigade that they are to respond when they receive the alarm, not when they feel like it.
Today the 1989 Act says that it is a function of the Commissioner to form ‘brigades’ – although there is only one ‘Fire and Rescue NSW’ it is made up of multiple ‘brigades’ so I think your understanding that s 11 is directed to a brigade, and not the Commissioner, is correct. The Commissioner can determine which brigade is to receive the ‘alarm’ of fire and that brigade is to proceed forthwith. That interpretation can’t change the fact that we can’t actually read the section literally (if we did, as I say, you’d have to run over pedestrians). I think your interpretation that the section at best says that the brigade is to respond with all practicable or reasonable speed is indeed correct. It remains the case that the section does not set up a situation where a person could sue alleging that the brigade had not responded as required by s 11.
What a load of baloney, really,
What part of the question, or answer, is ‘baloney’?