A member of a Queensland Rural Fire Brigade says:
… the volunteer members of the Brigade which is set up under the Fire and Emergency Services Act 1990 are members of an unincorporated association that conduct business as well as “fire and emergency” duties.
On Thursday, I was informed by a Regional Manager RFS that if an action was brought against my brigade or one of our members then as an unincorporated association, I and all members of the brigade would have to defend ourselves individually and QFES does not cover us.
His words were that I would lose my house and everything I own defending myself.
Also I was informed the QFES Act nor the Civil Liabilities Act would not protect me or a member from having claims against us and hence the cost of defence of such claims.
This is getting out of hand.
My regional manager specifically stated to me that as a Brigade Member I could lose everything in defence. Your comments would be appreciated; my only thought is that, similar to Queensland Justices of the Peace, an individual member might need professional indemnity insurance to cover these eventualities?
A question that springs to mind, but which I won’t attempt to answer, is why on earth would a JP need professional indemnity insurance? What on earth could a JP do that would expose them to liability? Those questions are rhetorical, I’m not really asking for answers nor am I going to try and provide any.
I have previously discussed what I think is the legal position of Queensland Rural Fire Brigades – see Status of Queensland Rural Fire Brigades (September 10, 2014) and Revisiting the status of volunteer rural fire brigades in Queensland (March 9, 2018).
The problem as I see it as that the term Queensland Fire and Emergency Service is used in two contexts. It describes the fire and emergency services that operates fire appliances and responds to emergencies, the service constituted by the Fire and Emergency Services Act 1990 (Qld) s 8 and refered to on the QFES website as “Fire and Rescue”. QFES is also the name of the relevant government department. As the QFES website says “Queensland Fire and Emergency Services (QFES) was established as a department on 1 November 2013 under the Public Service Act 2008. QFES reports to the Minister for Fire and Emergency Services”.
So QFES is the department, under the management of the Commissioner and answerable to the Minister (see Administrative Arrangements Order (No. 1) 2018 (Qld), p. 33) as well as the operational fire and rescue service. It’s true that members of the Rural Fire Brigades are not members of the Queensland Fire and Emergency Service (Fire and Emergency Services Act 1990 (Qld) s 8). They do however fall under the management of the Department that is Queensland Fire and Emergency Services. Note that the Department name, and the Act title refer to ‘services’ (plural) whereas the Queensland Fire and Emergency Service is a singular service, it is one of the three services that make up Queensland Fire and Emergency Services (the other two being the SES and the Rural Fire Brigades).
The Fire and Emergency Services Act provides for the formation of rural fire brigades but they are not a separate legal entity. As they are not a legal entity a brigade cannot enter into contracts or sue or be sued in its own name.
Just because a brigade does not have a separate legal existence, it does not follow that “if an action was brought against my brigade or one of our members then as an unincorporated association, I and all members of the brigade would have to defend ourselves individually and QFES does not cover us.” It is, in my view, clear that the Rural Fire Brigades are an operational part of the department Queensland Fire and Emergency Services. Any action against the department would be brought against the State of Queensland.
The Queensland Fire and Emergency Service is also not a legal entity but no-one is going to sue members of the QFES. Fire fighters are employed by the Commissioner (s 25), the Commissioner is the head of the government department and liability if any will belong to Queensland (see Queensland Fire and Rescue not liable after factory fire (October 3, 2014) and although the title of the post refers to Queensland Fire and Rescue, the defendant was the State of Queensland).
Queensland Ambulance is also not a separate legal entity but that did not stop the State of Queensland being the relevant defendant when a legal action was brought against the Ambulance Service – see State of Queensland STILL liable for paramedic negligence (October 25, 2017). That liability was in part due to the fact that the State of Queensland was the employer of Queensland ambulance officers. The State of Queensland is not the employer of volunteer fire fighters (obviously) but it exercise such control over the operation of rural fire brigades and their officers that I have no doubt vicarious liability would also extend to protect any fire fighters (Hollis v Vabu  HCA 44; Barclays Bank PLC v Various Claimants  EWCA Civ 1670).
I fail to see why ‘the QFES Act nor the Civil Liabilities Act would not protect’ a firefighter. Section 153B of the Fire and Emergency Services Act 1990 (Qld) says:
No liability attaches to any person for an act done, or omission made, honestly and without negligence under chapter 3.
The formation, function and powers of Rural Fire Brigades are all provided for in Chapter 3, Part 7 of the Act.
The Civil Liability Act 2003 (Qld) s 39 says:
A volunteer does not incur any personal civil liability in relation to any act or omission done or made by the volunteer in good faith when doing community work—
(a) organised by a community organisation; or
(b) as an office holder of a community organisation.
I have no doubt that the Queensland Fire and Emergency Services (ie the government department) is a community organisation (s 34) and I can’t see any reason why a volunteer with a rural fire brigade wouldn’t enjoy the protection offered by this section.
I note the advice that ‘QFES does not cover us’ is inconsistent with the advice of Deputy Commissioner Mike Wassing, Chief Officer Rural Fire Service and Chief Officer of the State Emergency Service (Letter from Deputy Commissioner Mike Wassing to all Rural Fire Service Volunteers, 11 May 2018, available at https://www.rfbaq.org/legalstatus).
Finally remember that people sue other people and entities for money. No-one is going to sue the members of a fire brigade as it would be a pointless waste of time. They want to sue the State of Queensland because the State of Queensland can afford it.
Being unincorporated is not unique to Queensland Rural Fire Brigades. No government agency wants its fire brigades to be separate legal entities as that would cause untold confusion. For related discussions see:
- Should a NSW RFS brigade retain its incorporated status? (February 16, 2018);
- Is an incorporated bush fire brigade a ‘bush fire brigade’ for the purposes of the Bush Fires Act 1954 (WA)? (May 5, 2017);
- RFS brigades entering into a contract (March 1, 2015);
- How autonomous are NSW Rural Fire Brigades? (February 25, 2015);
- Constitutions for NSW RFS brigades (May 21, 2014); and
- A further review of the Malone Inquiry into the Queensland Rural Fire Brigades (June 11, 2013).
I was asked to provide my comments in particular on the advice that:
… if an action was brought against my brigade or one of our members then as an unincorporated association, I and all members of the brigade would have to defend ourselves individually and QFES does not cover us.
…[neither] the QFES Act nor the Civil Liabilities Act would not protect me or a member from having claims against us and hence the cost of defence of such claims.
My comments are that that advice is rubbish, ill-informed and ridiculous (and I’m being polite! People who aren’t lawyers should stop giving legal advice and people should stop taking legal advice from people who aren’t lawyers, and yes, I’m assuming the Regional Manager is not a lawyer). As for the suggestion that ‘an individual member might need professional indemnity insurance’ I can’t believe you’d be able to get that sort of insurance, not because the risk is too high but it’s so low who would bother to offer it?
The rural fire brigades are not a legal entity, they are however part of the Queensland Fire and Emergency Services ie the government department that operates Queensland’s fire and emergency services even if they are not part of the operational service that is the Queensland Fire and Emergency Service. Do see again Revisiting the status of volunteer rural fire brigades in Queensland (March 9, 2018).
I really can’t see the issue.
great answer.. especially the part about managers being lawyers , made my day
Unfortunately this is typical intimidation of volunteers by paid staff who are trying to exert control over the volunteers and / or their brigades.
While they say they are there to support the volunteers, they are also trying to maintain control and thus ensuring that they are able to manipulate things to suit their needs and desires in meeting Commissioners priorities or to help them shine a little brighter for that next promotion.
Bullying still occurs