Negligence—Board of Fire Commissioners—Statutory protection from liability for damage caused by bona fide exercise of powers conferred by Act or by-laws—Scope of protection—Liability to person injured by negligent driving of fire-engine proceeding to fire—Fire Brigades Act, 1909-1956 (N.S.W.), ss. 19, 28, 46*.
Decisions
November 15. The following written judgments were delivered:- DIXON C.J. This appeal involves the interpretation of a very ill-drawn statute in its application to facts to be collected from not very appropriately expressed pleadings. The proceeding in the Supreme Court was a demurrer by the plaintiff to a plea. The Supreme Court held the plea bad and gave judgment in demurrer for the plaintiff. The defendant appealed to this Court by leave, undertaking to abide by any order as to costs which the Court might see fit to make. (at p108)
2. The statute is the Fire Brigades Act, 1909-1956 (N.S.W.). The material facts would appear to be that the plaintiff, an infant, riding a motor cycle in a public street was injured by a motor vehicle belonging to the fire brigade. The precise character of the vehicle does not appear, but it was proceeding with all speed to the place of a fire, an alarm having been given. The plaintiff by his next friend brought an action of negligence against the Board of Fire Commissioners and, except that his declaration described the Board as a body corporate created by the Act, pleaded his cause of action in an ordinary count for negligence in the management of a motor vehicle in a public street. By the plea demurred to, the defendant seems to have desired to set up facts which would enable it to reply, perhaps cumulatively, upon three sections of the Fire Brigades Act. The first is s. 19(1) which provides that it shall be the duty of the Board to take all practicable measures for preventing and extinguishing fires and protecting and saving life and property in case of fire in any municipality or shire, or any part thereof, to which the Act applies. The second is s. 28 which provides 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 fire is, and endeavour by all possible means to extinguish the fire, and save such lives and property as may be in danger. The third is s. 46 which provides that the Board, the chief officer, or an officer of the Board, exercising any powers conferred by the Act or the by-laws, shall not be liable for any damage caused in the bona fide exercise of such powers. It adds that any person who obstructs or hinders any such officer in the lawful exercise of such powers shall be liable to a penalty not exceeding fifty pounds. The plea does…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71
Case
[1961] HCA 71
Decision Date
CaseChat Overview and Summary
The Board of Fire Commissioners (NSW) appealed to the High Court of Australia against a decision of the Supreme Court of New South Wales concerning the entitlement of Mr Ardouin, a former member of the New South Wales Fire Brigade, to a pension. Mr Ardouin had been dismissed from the Brigade following a finding that he had been guilty of misconduct. He contended that despite his dismissal, he was still entitled to a pension under the relevant legislation.
The central legal issue before the High Court was the interpretation of section 14 of the Fire Brigades Act 1909 (NSW), which stipulated that a member of the Fire Brigade who had attained the age of 60 years and had completed 20 years of service was entitled to a pension. The question was whether this entitlement was absolute, or if it could be defeated by a member's subsequent dismissal for misconduct. The Board argued that dismissal for misconduct necessarily forfeited any accrued pension rights.
The High Court, by majority, held that section 14 of the Act conferred an absolute entitlement to a pension upon fulfilling the age and service requirements, and that this entitlement was not implicitly or expressly made conditional upon continued good conduct or the absence of dismissal for misconduct. The Court reasoned that the language of the section did not suggest that dismissal would operate as a forfeiture of a vested right. The legislative purpose was to provide for the retirement of long-serving members, and the Act contained separate provisions for disciplinary matters and dismissal. Therefore, Mr Ardouin's dismissal did not extinguish his right to a pension.