Duty of care and public authorities: Hamcor & Anor v State of Queensland & Ors  QSC 224
7 November 2014
Crown Law has defended a Supreme Court claim in excess of $18 million against the State of Queensland involving the Queensland Fire and Rescue Service (QFRS).
The Supreme Court held that even though the QFRS owed a duty of care to the plaintiffs and breached that duty, it was entitled to immunity under s. 129(1) of the Fire and Rescue Service Act 1990 (FRS Act) (now titled the Fire and Emergency Services Act 1990).
The case concerned the actions of the QFRS in combating one of the largest chemical fires in Queensland’s history at a chemical plant at Narangba on Brisbane’s northside. When the QFRS first attended the scene, the fire was well involved and the chemicals stored in the plant were in an unknown quantity and combination, which made combating the fire very difficult.
Additionally, there was a solvent tank and LPG cylinder at the plant. The Court acknowledged that the solvent tank was at a significant risk of a catastrophic explosion.
The QFRS extinguished the fire with water rather than foam. Water mixed with the burning chemicals created fire-water, which ultimately contaminated the plaintiffs’ land and neighbouring lands. The plaintiffs were then required to remediate the land at an alleged cost of more than $18 million.
The plaintiffs’ claimed these costs from the State alleging that the QFRS was negligent in extinguishing a chemical fire with water, and that the proper approach to the fire was to let it burn itself out. The plaintiffs alleged that the cost of remediation would have been far less if the QFRS had done so.
The Court held that the QFRS owed a duty of care to the plaintiffs, that duty being to take reasonable care not to damage the plaintiffs’ property when acting to combat a fire and hazardous materials emergency on the plaintiffs’ land.
The Court highlighted that while there was no binding authority that the QFRS owed a duty of care in fighting a fire, there was no authority to the contrary.
The Court also pointed to persuasive remarks in the High Court case of Board of Fire Commissioners v Ardouin which supported the existence of that duty.
The Court rejected the argument made on the QFRS’s behalf that there could be no sufficient proximity between an individual owner of property and the QFRS because the QFRS ‘owed duties to the public at large and coming under a duty to one person, or class of persons, might involve conflict with interests of various other persons’.
The Court accepted that in carrying out its functions in any given case, it may be that the QFRS had to choose between conflicting obligations, but said that the potential for conflicting duties was no reason to deny the existence of a duty to take reasonable care of the plaintiffs’ property in this case.
Actions taken by the QFRS when faced with conflicting obligations may, however, be relevant to the question of whether or not the duty to take reasonable care has been breached.
In deciding that a duty of care was owed in this case, the Court considered a number of factors including a reasonable foreseeability, proximity, control, reliance and vulnerability and concluded in particular that:
- damage to the plaintiffs’ land, by reason of inundation with fire water containing chemicals with the associated cost involved in addressing contamination, was reasonably foreseeable
- once the QFRS attended the plaintiffs’ land and began exercising its statutory powers to protect against fire and a hazardous materials emergency, it was in a position of control and the plaintiffs relied on their expertise
- there was a sufficient closeness and directness between the QFRS and the plaintiffs as owners of the property to establish a common law duty to take reasonable care to protect the plaintiffs’ property in combating the fire and emergency.
The Supreme Court held that the QFRS breached its duty to the plaintiffs in applying large amounts of water to areas of the plaintiffs’ land, except for the areas comprising the LPG cylinder and solvent tank and other high-risk areas.
In considering the question of breach of duty, the Court examined in some depth the application of s. 36 of the Civil Liability Act 2003 (CLA). Section 36 is headed ‘Proceedings against public or other authorities based on breach of statutory duty’, but there is no actual reference to ‘breach of statutory duty’ in the body of the provision itself.
It is expressed to apply to ‘the alleged wrongful exercise of or failure to exercise a function of’ a public authority. It provides that an act of a public authority does not constitute a wrongful exercise of its functions unless it is so unreasonable that no other public authority having the functions of the authority in question could consider it to be reasonable.
On its face, s. 36 seems to set a higher bar for a plaintiff to establish breach of duty by a public authority, but the heading to the provision suggests that it only applies to proceedings for breach of statutory duty. The question for the Court to determine was whether s. 36 applied in this case, which was not a proceeding for breach of statutory duty but rather one for breach of a common law duty of care.
The Court expressed the view that s. 36 ‘significantly’ lowered the standard of care owed by public authorities and observed that if s. 36 did apply in this case, it would defeat the plaintiffs’ claim. However, it found that s. 36 had no application to this proceeding as s. 36 is confined to proceedings for breach of statutory duty. The Court came to that conclusion as a matter of statutory construction, relying in part on s. 14(2) of the Acts Interpretation Act 1954 (AIA) which provides that a heading of a section of an Act is part of the Act.
Ultimately, the State’s successful defence of the claim turned on the Court’s finding that the QFRS was entitled to immunity from liability under s. 129(1) of the FRS Act. That section protects ‘any person’ from liability in respect of matters or things done by that person under the FRS Act or bona fide and without negligence for the purposes of the Act.
The plaintiffs failed in their argument that the immunity provided under s. 129 did not apply to the QFRS because it was not a ‘person’ for the purposes of that section. The Court accepted the argument put forward on behalf of the QFRS that s. 32D of the AIA provides a reference to a person generally includes a corporation and that Schedule 1 of the AIA defines corporation to include a ‘body politic’.
The Court found that the State – of which the QFRS is part – is bound by the Act, so it would be an odd construction if it did not also have the benefit of the Act. The Court also held that the application of water by the QFRS was something done by the officers ‘pursuant to the Act’. Apart from providing an excellent result for the State given the magnitude of the claim, the decision in this case provides a useful analysis of the legal principles relevant to the liability of a public authority when exercising its statutory powers.
It is also the first Queensland court decision, of which Crown Law is aware, that has considered in any depth the scope of s. 36 of the CLA and s. 129 of the FRS Act. The plaintiffs have appealed the decision.
The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.
Published: 7 November 2014
Author: Paula Freeleagus