A member of QFES writes regarding the Fire and Emergency Services Act 1990 (Qld) s 153B(1). That section says:
No liability attaches to any person for an act done, or omission made, honestly and without negligence under chapter 3.
Chapter 3 outlines the powers and functions of the Queensland Fire and Emergency Service
My correspondent is concerned with ‘what does honestly and without negligence’ actually mean? They say:
For example, if a firefighter manages traffic around an incident to which they have been responded, that is not an authorised action by any of the crew and no training is provided in traffic management by QFES as result. So, if a motorist runs up the back of another vehicle, is injured as a result and sues, the firefighter may have acted honestly, believing it was the appropriate thing to do so as to get people away from the situation e.g. a chemical spill by the roadside, but in acting contrary to their authorisation and training, have they acted negligently? There are many more situations like this that keep coming up and all we keep receiving are broad assurances that the organisation will support you. And in all cases, it is the use of the word “and” that creates the uncertainty as you have a number of possible permutations of outcomes, being an act or omission that:
- Was honest and not negligent;
- Was dishonest and negligent;
- Was honest, but negligent; and
- Was dishonest, but not negligent.
Clearly, only the first option provides relief from civil liability for the individual firefighters, but what is the legal nature of the other options? In the alternative, does the requirement to act honestly merely support/augment the requirement to not be negligent?
I would appreciate your thoughts on how you think this specific legislation works.
Vaughan v Webb (1902) SR(NSW) 293
To answer that question, we need to go back to 1902. In that year, in the Supreme Court of New South Wales determined that a fire brigade superintendent, who with the best of intention ordered that a wall be pulled down. The parties agreed that his actions were negligent but were done in good faith. Did the fact that he was acting in good faith mean there was no liability for the negligence? The answer, according to all three judges (Stephen ACJ, Owen and Pring JJ) was ‘no’. Pring J said (at p 307):
… in my opinion, the words “bona fide” when used to qualify a negligent act are quite meaningless. A negligent act is one which a man exercising ordinary care and prudence would not commit. The element of bad faith has manifestly no place in such a definition. A man may act with the most perfect bona fides and yet be guilty of imprudence or carelessness.
The headnote of the case (that is a little summary to help lawyers decide whether the case is likely to be important to them before they read the whole thing, but which is not part of the case) says:
An action lies for doing that which the Legislature has authorised, if it be done negligently.
The Superintendent of Fire Brigades shortly after a fire pulled down a wall that was dangerous to live and property, and, in so doing, acted negligently, and damaged the plaintiff’s property. Held, that the plaintiff could maintain an action against him to recover damages for the injury so done.
It was to avoid that consequence that the various sections in Australian fire and emergency services legislation provides that there is no liability for acts done in ‘good faith’, that is the NSW Supreme Court said ‘good faith’ is not a defence, so the legislature in most states set out to change the law to say good faith is a defence.
Queensland’s response
Queensland didn’t use the good faith formula, they used ‘honestly and without negligence’ – see also Ambulance Service Act 1991 (Qld) ss 36V and 41L; Disaster Management Act 2003 (Qld) s 130; Public Safety Business Agency Act 2014 (Qld) s 22 and Public Safety Preservation Act 1986 (Qld) s 8AQ. Those sections deal with quite different issues so won’t be discussed further but they make the point that this particular phrase is common in Queensland legislation.
So what does the section do? In my view it does nothing at all.
If the superintendent of the fire brigades had not been negligent there would be no liability anyway. A person is liable in negligence if they owe a duty of care, they fail to act reasonably to give effect to that duty and as a result that causes another person damage. If there is no negligence (because there was no duty; or there was no breach; or it did not cause damage) then there is no liability in negligence. So an action that is not negligent is not protected because protection is not required. An action that is negligent is not protected because the section doesn’t apply if there is negligence. Under the Queensland formula, Inspector Webb would be no better off as his act, although honest, was not ‘without negligence’.
But there could be liability in other circumstances, eg if the person is not acting honestly, that is for a proper purpose there may be liability for something like malicious damage. If, for example, a fire brigade captain decides to damage someone’s property, not because it’s necessary but just to make a point (see The cost of parking in front of a hydrant (April 2, 2013)) then negligence is not an issue. In that case the action (perhaps routing the fire hose through the window of the car) may be an option but if the choice was made to route the hose that way in order to punish the driver, not because it was the best option, then the action was not ‘done … honestly … under chapter 3’ (it was done for other purposes of punishment) so s 153B(1) won’t help. If Superintendent Webb had deliberately set the wall to fall down because he wanted to injure the plaintiff he would not be protected as the Act would not have been done ‘honestly’ even if it may have been reasonable to bring the wall down for the purpose of fighting the fire.
Torts other than negligence
Section 153B may have a role to play if someone is alleging a tort other than negligence, but it’s hard to see what that might be. But I suppose if someone were to allege battery, or false imprisonment, then provided the Act was done honestly and without negligence for the purpose of the Act then it may be relevant. But if it’s not negligent it’s reasonable and one can use reasonable force anyway – see s 52(2)(l). I simply can’t think of a situation where there would be a tort other than negligence where s 153B(1) would be relevant.
When might Fire and Emergency Services Act 1990 (Qld) s 153B(1) apply?
There is one circumstance where the formula might work. Section 53 of the Fire and Emergency Services Act 1990 (Qld) says:
(1) An authorised fire officer may take any reasonable measure—
(a) to protect persons, property or the environment from danger or potential danger caused by a fire or a hazardous materials emergency; or
(b) to protect persons trapped in any premises or otherwise endangered.
(2) Without limiting the measures that may be taken for a purpose described in subsection (1) , an authorised fire officer may for that purpose do any of the following—
(a) enter any premises;
(b) open any receptacle, using such force as is reasonably necessary;
(c) bring any apparatus or equipment onto premises;
(d) destroy, damage, remove or otherwise deal with any vegetation or any other material or substance, flammable or not flammable;
(e) destroy (wholly or in part) or damage any premises or receptacle;
(f) shore up any building;
(g) close any road or access, whether public or private;
(h) shut off the supply of water from any main, pipe or other source to obtain a greater pressure or supply or take water from any source whether natural or artificial;
(i) cause to be shut off or disconnected the supply of gas, electricity or any other source of energy to any premises or area;
(j) require any person who, in the opinion of the authorised fire officer, is—
(i) the occupier of premises, being the site of or near to the site of the danger; or
(ii) in charge of anything that is the source of the danger or likely (in the opinion of the officer) to increase the danger;
to take any reasonable measure for the purpose of assisting the officer to deal with the danger or answer any question or provide any information for that purpose;
(k) require any person not to enter or remain within a specified area around the site of the danger;
(l) remove from any place a person who fails to comply with an order given pursuant to paragraph (k) and use such force as is reasonably necessary for that purpose;
(m) if unable to identify the person entitled to possession of property found at or near the site of the danger, take possession of the property and retain it for safe custody.
Let us assume that a fire commander decides to take action under s 53(2)(i) that is he or she causes ‘…to be shut off or disconnected the supply of gas, electricity or any other source of energy to any premises or area’. Let us also assume the area is a commercial area. We can foresee that the disconnection of power is going to cause losses. Food and other perishables kept in refrigerators and freezers will be lost. But if that decision is made ‘honestly’ that is the commander is doing that as he or she believes that it is necessary for the purposes set out in s 53(1), because shutting off the power or gas will remove a fuel supply and make it safer for firefighters, and that is reasonable in the circumstances (ie not negligent) then by virtue of s 153B(1) no liability attaches to any person (ie the commander, or the QFES) for those actions even though it was foreseeable or even certain that there would be losses.
But, correctly, you point out that I said above, that In my view it does nothing at all and yet I’ve just given an example where it does do something. That’s true, it seems to me that s 153B(1) does have a role to play where a commander takes action knowing that it will cause damage but he or she does so without negligence (ie it’s reasonable) and they are doing it for proper purposes under the Act. The problem is that is what the common law says too.
Where an authority is exercising a statutory function or power, it has a duty to take care not to injure those affected by that action – ‘persons acting under statutory powers (as well as persons performing statutory duties) might at common law be under a duty of care towards persons likely to suffer damage as a result of their carelessness’ (Council of the Shire of Sutherland v Heyman [1985] HCA 41) but where there is no lack of care, but the damage is ‘an unavoidable or inevitable consequence’ of the action then there is no liability (Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430; see also Mark Aronson, ‘Government Liability In Negligence’ [2008] Melbourne University Law Review 44-82, 53).
To return to Vaughan v Webb, Stephen ACJ said (at pp. 298-299):
I need hardly say that if the Legislature authorises that to be done which must of necessity cause injury, no liability can accrue to the person carrying out the will of the Legislature… So here the defendant would not be liable if the wall could not have been pulled down without injury to the plaintiff.
If a fire commander decides to disconnect the power to premises and that decision is not negligent then there can be no liability for the foreseeable, inevitable and unavoidable losses that are the consequence of that decision. That is true whether s 153B(1) is there or not. Section 153B(1) merely restates that common law position but in my view doesn’t add anything.
Perhaps s 153B(1) has a role to play where there is no statutory power, that is in the example given by my correspondent?
… a firefighter manages traffic around an incident to which they have been responded, that is not an authorised action by any of the crew and no training is provided in traffic management by QFES as result.
There they may be acting ‘honestly’ that is ‘to protect persons … otherwise endangered’ (s 53(1)) but with no specific statutory power. But if the actions were not ‘reasonable in the circumstances’ they were negligent and s 153B(1) won’t help. And if the actions were reasonable, s 153B(1) isn’t required.
Let me look then at the 4 possibilities suggested and assume the firefighter’s actions, in any example, were:
- Honest and not negligent – s 153B(1) isn’t required as there is no liablity anyway, though codifying the common law may give some comfort;
- Was both dishonest and negligent – s 153B(1) doesn’t apply, the action must be both honest and without negligence.
- Was honest, but negligent – s 153B(1) doesn’t apply, the action must be both honest and without negligence; and
- Was dishonest, but not negligent – s 153B(1) doesn’t apply, the action must be both honest and without negligence.
Hamcor Pty Ltd & Anor v State of Qld & Ors [2014] QSC 224
As I’ve noted on this blog, often enough, the fire and emergency services are not sued as often as people who read this blog appear to think they are. There has however been a recent case involving QFES and if s 153B(1) was going to be relevant, it would have been relevant here – see Hamcor Pty Ltd & Anor v State of Qld & Ors [2014] QSC 224 (Dalton J) and my commentary, Queensland Fire and Rescue not liable after factory fire (October 3, 2014). In my commentary I set out the facts as follows:
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.
At the time the relevant protection was found in s 129 of the Fire and Rescue Service Act 1990 (Qld). That section said (emphasis added):
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.
To reformat the section, it 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.
Compare that to the current s 153B(1) that says:
No liability attaches to
- any person
- for an act done, or
- omission made,
- honestly and without negligence
- under chapter 3.
Under s 129 the action had to be done either ‘pursuant to’ the Act OR ‘bona fide and without negligence for the purposes of this Act’. In the course of her judgement, Justice Dalton said:
This contest proceeded on the basis, which I accept is correct, that if I found the first defendant owed a duty to the plaintiffs and had breached it, the second limb of s 129(1) would not protect the QFRS because the actions, although bona fide, were negligent.
She did however find that the QFRS did enjoy protection provided by s 129 because their actions were done ‘pursuant to’ this Act, that is they relied on the powers in s 53. They were not defeated by the finding of negligence as there were two possible limbs of the defence. They were protected if the acts in question were done pursuant to the Act OR bona fide without negligence. They were not without negligence but they were pursuant to the Act so the defence applied.
The modern s 153B(1) does not have that ‘or’. It says the actions in question must be done ‘honestly and without negligence under chapter 3’. I don’t think you can infer that there should be an ‘or’ between ‘negligence’ and ‘under chapter 3’. In my post on Hamcor’s case I said:
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)).
Conclusion
It is my view that a section such as s 153B(1) excluding liability only where ‘the act done, or omission made’ was done or made ‘honestly and without negligence’ do nothing at all. And if it’s any authority (and it’s not) I’ve been saying that since the first edition of my book Emergency Law, published by the Federation Press in 1999.
However, before firefighters get too worried let me again remind them of the concept of vicarious liability. To again quote from my earlier post on Hamcor’s case:
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 [2012] 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.
Australian Emergency Law 