McLellan and Anor. v Queensland Rail

DISTRICT COURT OF QUEENSLAND

CITATION:

McLellan & Anor. v. Queensland Rail [2001] QDC 058

PARTIES:

McLELLAN, John Thomas (by his next friend James Thomas McLELLAN)  (First Plaintiff)
And
BRAYTON, Matthew (by his next friend Lorraine BRAYTON)  (Second Plaintiff)
And
QUEENSLAND RAIL  (Defendant)

FILE NO/S:

8 of 1998
D40 of 2000

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Gympie

DELIVERED ON:

6 April 2001

DELIVERED AT:

Maroochydore

HEARING DATE:

19-21 March 2001

JUDGE:

Robertson DCJ

ORDER:

The plaintiffs’ claims against the defendant are dismissed.

CATCHWORDS:

NEGLIGENCE – Personal Injuries – Damages – Plaintiffs suffered burns after riding trail bikes into a fire lit by defendant – whether defendant breached common law and/or statutory duties of care – whether risk of injury was foreseeable

Cases Cited:

Wyong Shire Council v. Shirt (1979-1980) 146 CLR 40
Romeo v. Conservation Commission of the Northern Territory (1998) 192 CLR 431
Aiken v. Kingborough Corporation (1939) 62 CLR 179
Wilmot v. State of South Australia (1993) Aust Torts Reports 81-259
Borland v. Makauskas & Anor [2000] QCA 521
Nagle v. Rottnest Island Authority (1992-1993) 177 CLR 423

Statutes Judicially Considered:
Fire Service Act 1990, s.72

COUNSEL:

J J Allen for the plaintiffs
J C Bell QC with R Jackson (for the defendant)

SOLICITORS:

C A Sciacca & Associates (for the plaintiffs)
Phillips Fox (for the defendant)

Introduction

1. In the late morning of the 25^th September 1995, the plaintiffs, John Thomas McLellan (the first plaintiff) and Matthew Brayton (the second plaintiff) were injured when they rode their trail bikes into a fire lit by the defendant.  The fire was part of a controlled burn being conducted by the defendant in the railway corridor at Curra north of Gympie, for the purposes of reducing dead grass and vegetation thus preventing accidental fire outbreak.

1. The plaintiffs allege that the defendant owed them (or a class of persons such as them) a duty of care which it breached in the manner particularised in paragraphs 16 of the Plaints (as amended by leave at the start of the trial by the addition of two new particulars (h) and (i)). As well as the claim based on negligence of the defendant, the plaintiffs further allege a breach of statutory duty particularised in paragraph 17 of the Plaints as a breach of s.72 of the Fire Service Act 1990. Prior to lighting the fire the defendant had obtained a permit as required by the Act. The permit is Exhibit 23. It is common ground that whereas the permit contains a condition that 10 persons be in attendance at the fire, in fact only seven were present.

1. Mr Bell Q.C. for the defendant submitted at the outset that s.74 of the Act makes it clear that the Act does not impose any liability beyond that at common law.  I agree with his submission that the purpose of s.74 is to excuse liability that would otherwise exist at common law if certain statutory preconditions are satisfied.  It does not follow that if…