Myer Stores Ltd v State Fire Commission
[2012] TASSC 54
•24 August 2012
[2012] TASSC 54
COURT: SUPREME COURT OF TASMANIA
CITATION: Myer Stores Ltd v State Fire Commission [2012] TASSC 54
PARTIES: MYER STORES LTD
THE RETIREMENT BENEFITS FUND BOARD
v
STATE FIRE COMMISSION
CHIEF OFFICER OF THE TASMANIA FIRE SERVICE
FILE NO: 831/2010
DELIVERED ON: 24 August 2012
DELIVERED AT: Hobart
HEARING DATE: 21 March 2012
JUDGMENT OF: Blow J
CATCHWORDS:
Fire, Explosives and Firearms – Fire brigades – Powers, duties and liabilities of authorities – Statutory liability of State Fire Commission (Tas) – Statutory protections from liability for damage caused in good faith – Whether applicable if inadequate preparation or training.
Fire Service Act 1979 (Tas), s121(1), (2).
Aust Dig Fire, Explosives and Firearms [8]
REPRESENTATION:
Counsel:
Plaintiffs: N J Young QC, P W Tree SC, P Herzfeld
Defendants: Dr J Griffiths SC, N Owens, T Cox
Attorney-General: G L Sealy SC, A Morton
Solicitors:
Plaintiffs: Lander and Rogers
Defendants: Allens Arthur Robinson
Attorney-General: Director of Public Prosecutions
Judgment Number: [2012] TASSC 54
Number of paragraphs: 53
Serial No 54/2012
File No 831/2010
MYER STORES LTD, RETIREMENT BENEFITS FUND BOARD
v STATE FIRE COMMISSION, CHIEF OFFICER
OF THE TASMANIA FIRE SERVICE
REASONS FOR DETERMINATION BLOW J
24 August 2012
On 22 September 2007 the Myer Store in Liverpool Street, Hobart was destroyed by fire. Myer Stores Ltd and the Retirement Benefits Fund Board have sued the State Fire Commission and the Chief Officer of the Tasmania Fire Service for damages for negligence. According to their statement of claim, the RBF Board owned the premises, and Myer was the occupier, the entity that carried on a retail department store business on the premises, and the owner of numerous chattels within the store. The two plaintiffs have sued the defendants for damages for breaches of alleged statutory duties and for negligence, alleging various failures in relation to preparation and training prior to the fire.
Under the Fire Service Act 1979 ("the Act"), s121, the Commission and its officers have immunities from liability in certain circumstances. It is no doubt because of those immunities that no allegations of negligence or breach of duty have been made in relation to any act, or failure to act, while the fire was burning. It is inevitable that issues will arise in the plaintiffs' action as to the scope of the immunities in relation to preparation and training before the fire. Therefore, on 24 March 2011, the Associate Judge ordered, with the consent of all parties, that, on the assumption (but without any admission) that the facts pleaded in the statement of claim are proved by the plaintiffs at trial, two questions be determined as preliminary issues in advance of all other issues. The questions for determination, after an amendment, are now as follows:
"(a)Is the First Defendant entitled to the statutory immunity provided under section 121(2) of the Fire Service Act 1979 (Tas) with respect to the liability and damage pleaded at paragraphs 35 – 39 of the Statement of Claim?
(b)Is the Second Defendant entitled to the statutory immunity provided under section 121(1) of the Fire Service Act 1979 (Tas) with respect to the liability and damage pleaded at paragraphs 35 – 39 of the Statement of Claim?"
Submissions as to those questions have been made not only by counsel for the plaintiffs and the defendants, but also by counsel for the Attorney-General, who has intervened pursuant to the Crown Proceedings Act 1993, s16(1)(a).
The facts on which the plaintiffs' claims are based, as pleaded in their statement of claim, can be summarised as follows:
· The fire started between 12 noon and 3pm in a void space between the ceiling of the ground floor and the floor of the first floor of the store.
· At about 3.08pm, Tasmania Fire Service ("TFS") personnel attended the store.
· The store was equipped with a sprinkler system, which included sprinkler heads in the void space where the fire started.
· At about 3.11pm, one or more of the sprinkler heads in the void space activated.
· Once the sprinkler system activated, it would continue to discharge water through open sprinkler heads until water supply to the system terminated.
· At about 3.28pm, a TFS fire-fighter fully closed the stop valve of the sprinkler system, so that no more mains water could flow into it, and fully opened the sprinkler system's drain valve, so that all water within that system would discharge. In other words, that fire-fighter de-activated the sprinkler system.
· At about 3.42pm, the fire spread beyond the void where it had started.
· At about 3.44pm, a TFS officer partially opened the valve that let mains water into the sprinkler system, but failed to close the drain which permitted water within the sprinkler system to discharge, rather than passing through the sprinklers. By that time the sprinkler system could not operate effectively because too many sprinkler heads had activated.
· A TFS officer in charge of the scene apprehended at or about 3.23pm that there was a risk of electrocution associated with fighting the fire in the void, and apprehended that the store needed to be urgently disconnected from all electrical supply. However it was not until about 3.45pm that a TFS officer first requested an urgent disconnection of electricity to the store. Such a disconnection was effected by Aurora Energy at or about 3.55pm. If promptly requested, such a disconnection could have been effected no later than 3.26pm.
· If such a disconnection had been requested urgently at 3.23pm, then the TFS personnel would not have needed to consider the de-activation of the sprinkler system.
· Even if the sprinkler system had been de-activated, it could have been promptly re-activated, and its mains supply could have been augmented by attaching a booster to pumps mounted on TFS appliances.
· The booster was not used on the day in question.
· If the sprinkler system had not been de-activated, or if it had been promptly re-activated with an augmented supply, the damage to the store and its contents would have been avoided or lessened.
· The failure of TFS personnel to request an urgent disconnection of the electricity earlier than 3.45pm was the result of TFS personnel not having been trained properly or at all in relation to the means of achieving disconnection, or urgent disconnection, of electricity to premises.
· Universally accepted fire-fighting practice was that automatic sprinkler systems ought not be de-activated until a fire has been wholly extinguished except in the most extraordinary circumstances of danger to life or property. Such extraordinary circumstances did not exist in this case.
· The damage would have been avoided or lessened if the sprinkler system had been re-activated sooner than it was, at least before too many sprinkler heads had activated, (a) by fully opening the stop valve and closing the drain, and/or (b) by partly opening the stop valve, using the booster to augment the mains supply of water from TFS appliance mounted pumps, and closing the drain.
· The de-activation of the sprinkler system, the inadequate partial re-activation of the sprinkler system, and the failure to use the booster, were all the result of TFS officers and fire-fighters having no training, or no proper training, as to automatic sprinkler systems and fire-fighting in buildings with them.
· There was no pre-fire plan for the Myer store or any "occupancy of a similar character". If there had been any such plan, competently prepared, the damage would have been avoided or lessened.
In their statement of claim, the plaintiffs have pleaded causes of action on three different bases:
· They have pleaded that the Commission and the Chief Officer each breached statutory duties imposed by the Act, and that they are liable for damages in tort at common law for those breaches. Under s8(1)(c) of the Act, one of the Commission's functions is "to develop effective fire prevention and protection measures throughout the State". It is alleged that that statutory duty was breached in that the Commission failed to prepare a pre-fire plan for the Myer store or for an occupancy of a similar character. Under s10(2), the Chief Officer is responsible for, amongst other things, the training of TFS officers and fire-fighters. It is alleged that he failed to train officers and fire-fighters properly or at all in relation to the means of achieving the disconnection of electricity to premises urgently or otherwise; as to the capacity and operational features of automatic sprinkler systems; and as to the undertaking of fire-fighting activities in a building with an activated automatic sprinkler system. It is alleged that the Commission is vicariously liable for the Chief Officer's alleged breaches of statutory duty.
· The plaintiffs contend that s121(1), the full text of which is set out later in these reasons, creates a new form of statutory tort liability on the part of the Commission in respect of, amongst other things, damage that is wholly or partly attributable to the failure of the Commission to perform or properly perform any function imposed on it by or under the Act. The plaintiffs have pleaded that the Commission is liable for damages by virtue of s121(1) in respect of failures on its part in relation to training, and the preparation of pre-fire plans.
· The plaintiffs have pleaded causes of action against both the Commission and the Chief Officer in negligence.
The statement of claim contains particulars in which it is alleged that the Commission and the Chief Officer were each negligent in the following respects:
· Failing to prepare a pre-fire plan for the Myer store.
· Failing to prepare a pre-fire plan for "an occupancy of a character similar to the Myer store".
· Failing to train, or to properly train, TFS officers and fire-fighters as to the means of achieving disconnection, including urgent disconnection, of electricity to premises.
· Failing to train, or to properly train, TFS officers and fire-fighters as to the capacity and operational features of automatic sprinkler systems.
· Failing to train, or to properly train, TFS officers and fire-fighters as to the undertaking of fire-fighting activities in a building with an activated automatic sprinkler system.
The allegations of breaches of duty, failures and negligence are all disputed by the defendants. However I am required to make a determination upon the assumption that all the plaintiffs' allegations are proved.
The critical section in the Act, s121, reads as follows:
"(1) Where any person dies or sustains injury or damage and the death, injury, or damage is wholly or partly attributable to —
(a)the failure of the Commission or a brigade or an officer, fire-fighter, employee, or agent of the Commission or a brigade to perform or properly perform any function imposed on it or on him by or under this Act;
(b)the improper exercise by the Commission or a brigade, or by any officer, fire-fighter, employee, or agent of the Commission or a brigade, of any power conferred on it or on him by or under this Act; or
(c)the contravention by the Commission or a brigade or any officer, fire-fighter, employee, or agent of the Commission or a brigade, of any provision of this Act or the regulations, being a provision that prohibits, whether conditionally or unconditionally, the Commission, brigade, officer, fire-fighter, employee, or agent from doing any act —
the Commission shall, except as provided in subsection (2) and subject to the defences and other incidences ordinarily applicable in proceedings in tort, be liable in tort in respect of the death, injury, or damage, but no such brigade, officer, fire-fighter, employee, or agent shall be so liable unless it is proved by or on behalf of the plaintiff that the brigade, officer, fire-fighter, employee, or agent in failing to perform or properly perform a function referred to in paragraph (a), in the improper exercise of a power referred to in paragraph (b), or in contravening a provision referred to in paragraph (c), acted, or, as the case may be, failed to act, in bad faith.
(2) Subject to subsection (4), the Commission is not liable for any death, injury, or damage if the death, injury, or damage is attributable wholly or partly to any act or failure to act by a brigade or an officer, fire-fighter, employee, or agent of the Commission or a brigade if the act or failure to act occurred in the course of, or was directly connected with, any operation specified in subsection (3) unless it is proved that the brigade or the officer, fire-fighter, employee, or agent of the Commission or a brigade acted, or, as the case may be, failed to act, in bad faith.
(3) The operations referred to in subsection (2) are those directed to extinguishing, or preventing the spread of, a fire or reducing the risk of a fire occurring, or to the training of persons in the carrying out of any of those operations.
(4) Nothing in subsection (2) affects any liability of the Commission under the Workers Rehabilitation and Compensation Act 1988 or any duty of the Commission at common law towards any member of the Fire Service.
(5) Every member of a brigade is taken to be a member of the Fire Service for the purposes of this section whether or not the person receives any remuneration as such member."
There is no allegation of bad faith in this case, nor is there any allegation of any contravention of the Act, or regulations thereunder, that would make s121(1)(c) applicable.
The plaintiffs' contentions as to s121 can be summarised as follows:
· They contend that s121(1) creates a new form of statutory liability on the part of the Commission, and that that subsection is not concerned with common law torts.
· They contend that the immunity conferred by s121(1) applies only to the new form of liability created by s121(1), and not to any liability of a brigade or an individual at common law.
· They contend that s121(2) does not confer any immunity in respect of a liability arising at common law.
· They contend that, whilst s121(2) confers an immunity in relation to "any act or failure to act by a brigade or an officer, fire-fighter, employee, or agent of the Commission", it does not confer any immunity as to the Commission's own torts.
· As to the claims against the Chief Officer, they contend that he is not an "officer" for the purposes of s121, and that he is not covered by the immunity granted by s121(1) to "a brigade or an officer, fire-fighter, employee, or agent of the Commission or a brigade".
The defendants and the Attorney-General disagree with all those contentions. Their contentions can be summarised as follows:
· They contend that s121(1) does not create a new form of statutory liability, and that it relates solely to liability for common law torts. Thus they contend that the immunity conferred on the Commission by s121(2) is an immunity in respect of liabilities arising at common law.
· They contend that s121(2) provides an immunity to the Commission in respect of its own torts.
· They contend that the Chief Officer is an officer, employee and agent of the Commission for the purposes of s121(1), and that he is therefore covered by the immunity conferred by that subsection.
The common law position
If s121 did not exist then, subject to any other applicable statutory provision, individuals involved in TFS activities could be sued at common law for negligence and other torts. In relation to acts and omissions in emergency situations, the existence and nature of any emergency would be relevant to the question whether there had been a breach of a duty to take reasonable care, or of any other duty: Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105 per Windeyer J at 126.
Without s121, the Commission would, in certain circumstances and subject to any other applicable statutory provision, be vicariously liable for the torts of its agents. It does not have employees. Its employed personnel are employees of the Crown: the Act, s24(1). It is at least arguable that at common law the Commission would be liable for harm caused by the tort of an agent who is not an employee only in certain very limited circumstances. See, for example, Bowstead and Reynolds on Agency, 16th ed (1996) at 502. It is at least arguable that some of the personnel referred to in s121(1), particularly volunteer fire-fighters, are not agents of the Commission, and that it would therefore not ever be vicariously liable for their torts at common law.
When a statute imposes a duty, a breach of that duty is not necessarily actionable in tort. The question whether such a breach is actionable in tort depends on the proper interpretation of the statute: O'Connor v S P Bray Ltd (1937) 56 CLR 464 at 477 – 479; Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405; Miller v Miller (2011) 242 CLR 446 at par[28]. For the purposes of determining the questions now before me, I need not decide, and will not decide, whether the breaches of statutory duty pleaded by the plaintiffs were actionable at common law.
Purpose and history of statutory immunities
Statutory immunities for fire-fighters are common. Some policy considerations relevant to such immunities were discussed by Reed J in Tally v Motueka Borough [1939] NZLR 252. In that case there was legislation that conferred an exemption from liability on a "member of a fire brigade in the bona fide exercise of his duty at or in connection with any fire, or in respect of any damage to property occasioned by such … member taking any bona fide action in connection with any fire". The legislation also deemed such damage to be damage by fire within the meaning of any policy of insurance against fire covering the damaged property. At 254, Reed J said:
"It is to be observed that the authority conferred on the officer responsible for ordering the work is, in the majority of cases, to be exercised in circumstances when little or no time would be given for consideration, when speed and prompt action was called for if a fire was to be kept within bounds. … The Legislature might well have considered the necessity for providing for absolute immunity so that the officer ordering the work and those performing it could work untrammelled by any fear of their actions, performed in good faith, being subjected to a critical examination afterwards as to whether or not the work had been performed negligently. … It may well be that … the Legislature should take the somewhat unusual course of granting absolute immunity so that officers and members of a fire brigade could devote their whole attention, regardless of consequences, to their main duty of supressing the fire, and, as I have already said, the immunity is extended equally to acts after the fire carried out bona fide for the protection of life and property."
Those remarks were quoted with approval by Gibson J in Osborne v Burnie Fire Brigade Board [1959] Tas SR 133 at 141 – 142.
Before the Act was passed in 1979, Tasmanian fire-fighters acting in good faith had statutory immunities from tort liability under two statutes, one relating to fire brigades under the jurisdiction of the Fire Brigades Commission, and one relating to rural fire-fighters under the jurisdiction of the Rural Fires Board. The Fire Brigades Act 1945, which was repealed by the Act in 1979, provided as follows in s57:
"A board, or any chief officer, or any officer or member of a brigade, exercising any powers conferred by this Act, shall not be liable for any damage caused in the exercise in good faith of those powers."
Similarly, the Rural Fires Act 1967, which was also repealed by the Act in 1979, provided as follows in s64(1) and (2):
"(1) An officer to whom this section applies is not liable for damage caused by the exercise in good faith of any of the powers conferred on him by this Act or by any Act, matter, or thing done by him in good faith in the course of fire-fighting operations.
(2) A person who exercises a power or performs a duty in relation to fire-fighting operations in his capacity as a member of a rural fire brigade or under the direction or supervision of an officer to whom this section applies is not liable for damage caused by the exercise in good faith of that power or the performance in good faith of that duty."
There were similar general immunities, not confined to any particular class or classes of operations, under earlier legislation: Fire Brigades Act 1920, s33; Rural Fires Act 1950, s44.
The Rural Fires Act 1967 was amended in 1976 so as to extend the immunities granted by s64(1) and (2) to damage caused in the course of risk prevention and training operations: Rural Fires Act 1976, s18. The two subsections were amended by deleting the words "fire-fighting operations" and substituting the words "any of the operations specified in subsection (2A)". A new subs(2A) was inserted in terms substantially similar to the current s121(3). There was no corresponding amendment to the Fire Brigades Act 1945.
The commencement of the Act saw the creation of the Commission, which replaced the Fire Brigades Commission and the Rural Fires Board. On any interpretation of s121, the scope of the immunities conferred by that section differed from the scope of the immunities under the repealed legislation.
Section 111(a) of the Act provides that any damage to property caused by a member of the TFS "in the lawful execution of any power conferred by this Act … shall be deemed to be damage by fire, within the meaning of a policy of insurance against fire, covering the property so damaged, notwithstanding anything in that policy to the contrary". There were similar provisions in earlier legislation: Fire Brigades Act 1920, s19; Fire Brigades Act 1945, s56. In Osborne v Burnie Fire Brigade Board (above), which concerned the Fire Brigades Act 1945, Gibson J commented, at 137, "… it seems that the policy of the legislation is to secure as ample a compensation for both damage by fire and damage caused by a fire brigade as is reasonably possible, short of making fire insurance compulsory".
Common law liabilities and s121
As I have said, the plaintiffs contend that s121(1) establishes a statutory cause of action that is separate and distinct from any common law cause of action. They contend that that cause of action is available whenever death, injury or damage is caused wholly or partly by any of the circumstances listed in pars(a), (b) and (c) of s121(1). However counsel for the plaintiffs acknowledged that there is an alternative interpretation of s121(1) that needs to be considered, whereby that subsection does not create a new statutory liability but relates to liability for common law torts.
If the plaintiffs' suggested interpretation of s121(1) is correct, then the Commission is liable to pay damages whenever death, injury or damage is caused or contributed to by the failure of an officer or a fire-fighter to perform or properly perform a function imposed by or under the Act, or by the improper exercise by an officer or a fire-fighter of a power conferred by or under the Act. If so, liability could exist under s121(1) in circumstances where neither the Commission nor any individual is or would be liable at common law for a breach of a duty of care. The Commission could be liable for failures or improprieties of individuals in circumstances where those individuals owed no common law duty of care. It could be liable for the failures or improprieties of individuals even when it was not vicariously liable for the torts of those individuals at common law.
The Act contains a number of provisions imposing functions and conferring powers, including the following:
· Under s8(1)(a), one function of the Commission is "to formulate the policy in respect of the administration and operation of the Fire Service".
· Under s8(1)(c), as I have said, one of its functions is "to develop effective fire prevention and protection measures throughout the State".
· Under s8(1)(f), another of its functions is "to establish and maintain training facilities for brigades".
· Under s10(2), the Chief Officer is the chief executive officer of the TFS and as such is responsible for, amongst other things, the control and management of the fire-fighting resources of the TFS and, as I have said, the training of officers and fire-fighters.
· Under s10(4), the Chief Officer "may do all things necessary or convenient to be done for or in connection with, or incidental to, the performance of the Chief Officer's functions".
· Under s26(1), the Commission may establish brigades. Under s26(2), a brigade may be established as either a permanent brigade, a composite brigade, or a volunteer brigade.
· Under s26(3)(a), if a permanent brigade is established, the Commission must appoint a brigade chief, and such fire officers and fire-fighters as it considers necessary or expedient.
· Under s26(7), a brigade and its members must carry out such functions as the Chief Officer from time to time directs.
· Under s29(2), when a call is received to a fire or potential fire within the area of operation of a brigade, the brigade chief is required, immediately after the first alarm, to "direct or cause members of his brigade to proceed with all possible speed to the place where the fire or potential fire is and take all necessary action to extinguish the fire or prevent an occurrence of fire and to save all property".
· Under s40(1), a brigade chief may cause the brigade under his or her control to render assistance in respect of a civil emergency.
· Under s41(1)(a), a brigade chief may employ any brigade under his or her command, or allow that brigade to be employed, in the performance of services other than fire-fighting, and use any equipment of the Commission, or allow any such equipment to be used, in the provision of those services. Charges in respect of equipment can be imposed by the Commission under s41(3).
· Under s6, the TFS is under the control of the Commission.
Section 121(1) deals with three topics – (i) the liability of the Commission; (ii) the general immunity of brigades and individuals; and (iii) an exception to that immunity whereby brigades and individuals are liable for acts and omissions in bad faith. If, as the plaintiffs contend, that subsection creates a new statutory cause of action and has no impact on common law rights and liabilities, then it must do two things – it must confer a right of action against the Commission, and it must confer rights of action against brigades and individuals limited to cases involving bad faith. That is because it first provides that in certain circumstances the Commission shall "be liable", and then goes on to provide that no brigade or individual "shall be so liable unless it is proved … that the brigade, officer, fire-fighter, employee, or agent … acted, or … failed to act, in bad faith". [My emphasis.] The words used in subs(1) in relation to the immunity and liability of brigades and individuals are appropriate words for the conferring of immunities and the creation of an exception in respect of bad faith. That strongly suggests that the purpose or object of those words was to confer immunities and create an exception, not to create a new liability for brigades and individuals limited to cases of bad faith. If the latter had been the relevant purpose or object, one would expect different words to have been used. If the words were intended to create immunities, they must have been intended to create immunities in relation to torts existing independently of the Act, ie common law torts. The use of language appropriate to the creation of immunities, and exceptions thereto, is a very powerful indication that subs(1) is concerned with common law torts, and not some new form of statutory liability.
If the plaintiffs' suggested interpretation of s121(1) is correct, that subsection did not create a liability on the part of brigades or individuals for acts and omissions in good faith but, in respect of those same acts and omissions, and the same deaths, injuries or damage attributable to them, left those brigades and individuals exposed to liability for common law torts. It is unlikely that such a result was intended by Parliament. There is no sensible reason why such a state of affairs might have been intended.
As I have said earlier, until 1979 rural fire-fighters had an immunity in relation to fire-fighting, risk reduction, and training operations, whereas urban fire-fighters had an immunity in relation to all operations authorised by the statute that applied to them. If the plaintiffs' contentions are correct, the legislative changes in 1979 had the effect of exposing TFS personnel to common law liability for their acts and omissions in good faith, when previously there had been a general immunity for individuals to whom the Fire Brigades Act 1945 applied, and an immunity in respect of fire-fighting, risk prevention, and training operations for those to whom the Rural Fires Act 1967 applied. No sensible reason for such a change is apparent. It is highly unlikely that Parliament intended such a consequence.
If the defendants' contentions are correct, the passing of the Act in 1979 gave all TFS personnel, including rural fire-fighters, a general immunity, subject only to a good faith requirement, by means of s121(1), and gave the Commission a more limited good-faith immunity, applicable only in relation to fire-fighting, risk reduction, and training operations, by means of s121(2).
It is very significant that the words used in respect of the liability of the Commission under s121(1) say that it shall "be liable in tort". That wording suggests that the subsection is concerned with liability in respect of common law torts. If the subsection were intended to create a new form of statutory liability as the plaintiffs contend, some might regard it as creating a "statutory tort", but one would expect the word "tort" not to have been used, in order to avoid ambiguity.
The subsection makes the liability of the Commission "subject to the defences and other incidences ordinarily applicable in proceedings in tort". Counsel for the defendants submitted that those words indicate that the subsection is concerned with liability for common law torts and does not create a new statutory liability. However I think those words are consistent with both suggested interpretations of the subsection. They are consistent with the subsection creating a new statutory liability that is subject to ordinary tort defences, such as contributory negligence and volenti non fit injuria, and also subject to the ordinary rules as to matters such as causation, remoteness of damage, the measure of damages, and claims for contribution.
Some of the arguments of counsel for the plaintiffs in relation to the interpretation of s121(2) are relevant to the task of interpreting s121(1). Subsection (2) confers an immunity on the Commission in relation to death, injury and damage resulting from acts and omissions of TFS personnel in the course of fire-fighting, risk reduction and training operations. Arguments were presented suggesting that subs(2) should be construed as conferring a narrow immunity, and therefore an immunity only in respect of a new form of statutory liability created by subs(1). Counsel for the plaintiffs relied on the principle that immunity provisions must be construed so that they operate no more widely than is strictly required by the language, policy and purpose of the relevant statute, citing Board of Fire Commissioners (NSW) v Ardouin (above) at 116 per Kitto J; Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 at pars[33] – [37] per McHugh J, [59] – [68] per Kirby J, [113] per Callinan J; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at par[78]; and Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at pars[43] – [44]. Counsel for the plaintiffs also relied on the principle that, where two constructions are open, the construction consonant with the common law is to be preferred, citing Balog v Independent Commission Against Corruption (1990) 169 CLR 625 at 635 – 636; Coco v R (1997) 179 CLR 427 at 437; and Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at pars[11], [32] – [35], [44], [45], [88], [94] and [111]. There is no scope for the application of either of those principles if the meaning of a legislative provision is clear.
In my view, for the reasons stated above, the wording of s121(1) and (2), and the history of immunity provisions in earlier legislation, as discussed above, compel the conclusion that those two subsections should be construed as conferring immunities on TFS personnel except in relation to acts and omissions involving bad faith, and exposing the Commission to a new form of statutory vicarious liability for common law torts, extending to cover situations where there would be no vicarious liability at common law, but subject to an immunity in relation to deaths, injury and damage attributable to the acts and omissions of TFS personnel, not involving bad faith, in fire-fighting, risk reduction and training operations. The defendants' suggested interpretation of s121(1) is the correct one, in my view.
Scope of the s121(2) immunity
It follows from my conclusion as to the interpretation of s121(1) that s121(2) must be concerned with common law liabilities. I will deal later with the question whether it confers an immunity in respect of the Commission's own torts. Since it applies to acts or failures to act "by a brigade or an officer, fire-fighter, employee or agent of the Commission or a brigade", it must at least apply to the Commission's vicarious liability at common law for the torts of TFS personnel, including torts of immunised individuals for which the Commission is not vicariously liable at common law.
Even if I am wrong as to the proper interpretation of s121(1), and that subsection creates new statutory liabilities, I still think s121(2) should be interpreted as conferring an immunity in respect of common law liabilities, and not just statutory liabilities under s121(1). First of all, when subs(2) describes what the Commission is not liable for, it does not expressly limit its immunity to liabilities that would otherwise exist under subs(1), but describes the scope of the immunity in general terms. Further, if subs(2) created an immunity only in relation to statutory liabilities under subs(1), there would have been no need for subs(4). That subsection preserves the liabilities of the Commission in respect of "any duty … at common law towards any member of the Fire Service". If the immunity conferred by subs(2) did not apply to common law liabilities, there would have been no need to deal with them in subs(4), nor for the opening words of subs(2), which make that subsection "Subject to subsection (4)".
Thus, whatever the proper interpretation of s121(1), it is clear that s121(2) confers immunities in respect of common law liabilities.
The Commission's own torts and s121(2)
Counsel for the plaintiffs submitted that s121(2) is open to two competing constructions, one conferring a narrow immunity on the Commission, and one conferring a wide immunity on it. The plaintiffs contend that the proper construction is the narrow one, whereby the Commission is immunised against tort claims for death, injury or damage attributable either (a) wholly to the acts or omissions of brigades, officers, fire-fighters, employees or agents, or (b) partly to their acts or omissions and partly to the conduct of third parties; but whereby the Commission is not immunised against claims in respect of death, injury or damage wholly or partly attributable to the Commission's own torts. However counsel for the plaintiffs also conceded that s121(2) might be construed as conferring a wider immunity, applicable whenever death, injury or damage is wholly or partly attributable to the acts or omissions of brigades, officers, fire-fighters, employees or agents, even when the death, injury or damage is partly attributable to the Commission's own torts, as distinct from the torts of individuals for which it is vicariously liable. Of course, on either construction, the subsection only applies in relation to death, injury or damage wholly or partly resulting from acts or omissions in the course of fire-fighting, risk reduction, or training operations within the scope of s121(3).
As Hayne, Heydon, Crennan and Kiefel JJ said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at par[47], "the task of statutory construction must begin with a consideration of the text itself".
It is true that s121(2) makes no express provision in relation to the Commission's own torts. However, at its core, it provides that, in relation to certain operations, "the Commission is not liable … if the death, injury, or damage is attributable wholly or partly to any act or failure to act by a brigade or an officer, fire-fighter, employee, or agent of the Commission or a brigade". If the death, injury or damage is attributable partly to a tort of the Commission, and "partly to any act or failure to act by a brigade or an officer, fire-fighter, employee, or agent of the Commission or a brigade", then, unless those words are not to have their ordinary literal meaning, the subsection applies and the Commission has immunity, subject of course to any statutory exception.
Section 121(4) provides that "Nothing in subsection (2) affects … any duty of the Commission at common law towards any member of the Fire Service." If, as the plaintiffs contend, subs(2) does not confer immunity on the Commission in respect of any of its own torts, then there is no need for subs(4) to say anything about the Commission's common law duties. If Parliament had wished, out of an abundance of caution, to make it clear that the immunity conferred by subs(2) had no impact in relation to the Commission's common law duties, then there would have been no need to confine the reference to the Commission's common law duties in subs(4) by adding the words "towards any member of the Fire Service". It follows that the wording of subs(4) gives a very strong indication that subs(2) has the effect of conferring an immunity on the Commission in relation to some of its own torts.
Counsel for the plaintiffs submitted that the structure of s121 supports the narrower construction of subs(2). Under subs(1), the Commission is liable in respect of its own acts or omissions in performing its statutory functions and exercising its statutory powers, as well as in respect of the acts and omissions of individuals performing their statutory functions and exercising their statutory powers. An exception is created by subs(2) in relation to the consequences of the acts and omissions of brigades and individuals in the course of, or having a direct connection with, certain types of operations. The nature of the operations in question, as described in subs(3), is such that they are carried out by brigades and individuals performing their statutory functions and exercising their statutory powers. It was argued that all of this tends to suggest that subs(2) confers a narrow immunity on the Commission, such that it is exempted from liability only in respect of the acts and omissions of brigades and individuals, and not in respect of its own torts. In my view that conclusion does not logically follow and, for the reasons stated below, is inconsistent with the language of subs(2).
It was argued on behalf of the plaintiffs that, whilst there are good reasons for providing individuals with immunity from tort liability in respect of fire-fighting operations and the like, there is no similar policy justification for giving the Commission immunity against liability for its own torts. I disagree. At least in relation to property damage, legislation in this State since 1920 had reflected a policy that the financial burden of unfortunate operational decisions should be borne by insurers, or by the uninsured. That seems possibly to have been a quid pro quo for the State providing fire-fighting services which, in times long past, were provided by insurance companies, and not at the expense of the public. The immunity provided to the Commission of course applies not just in respect of property damage, but also in respect of deaths and injuries. However there may also have been policy reasons, considered sound by the legislature, for exempting the Commission from liability in respect of deaths and injuries. Otherwise, serious fires could give rise to allegations of negligence and claims for damages which it could take a great deal of time, effort and expense to contest, and also to a skewing of the Commission's management of the TFS whereby the avoidance and minimisation of claims rivalled the protection of life and property as a focus. In my view there is no evident policy consideration that warrants departing from the ordinary meaning of s121(2).
I conclude that there is no reason to give s121(2) an interpretation that is inconsistent with its ordinary literal meaning. The subsection is applicable if death, injury or damage "is attributable wholly or partly" to an act or omission by a brigade or by certain individuals. If a death, injury or damage is attributable to a tort of the Commission, but not partly to an act or omission of a brigade or individual within the scope of the subsection, then the subsection confers no immunity on the Commission. But if any death, injury or damage is attributable partly to a tort of the Commission, and partly to an act or omission by a brigade or individual within the scope of the subsection, then the Commission has no liability.
Conclusions as to the Commission's immunity
If the allegations in the statement of claim are proved, as I must assume, the relevant damage, even if attributable partly to tortious breaches of duty by the Commission in relation to planning and training, was at least partly attributable to acts and omissions of officers and fire-fighters during the operation directed to extinguishing, or preventing the spread of, the Myer fire, ie during an operation within the scope of s121(3). It follows that the Commission must be entitled to the immunity provided by s121(2).
The liability of the Chief Officer
Counsel for the plaintiffs advanced two arguments in support of the contention that s121(1) does not confer an immunity upon the Chief Officer in respect of common law torts. The first argument was that the immunity conferred on individuals by s121(1) relates only to a new statutory liability, and not to common law torts, so that the Chief Officer remains liable at common law for his torts. That argument must be rejected since it is clear that s121(1) does not create a new statutory liability, and that it confers an immunity on brigades and specified classes of individuals in respect of common law torts.
The second argument was that the Chief Officer does not fall within the class of persons who are exempted from liability by s121(1), ie that he is not "an officer, fire-fighter, employee, or agent of the Commission or a brigade" within the meaning of the subsection.
Counsel for the defendants submitted that the Chief Officer is an "employee", an "officer", and an "agent of the Commission".
The agency point is the simplest. Under s10(2), as I have said, the Chief Officer is "the chief executive officer of the Fire Service". Under s8(1)(a), as I have said, one of the functions of the Commission is "to formulate the policy in respect of the administration and operation of the Fire Service". By implication, the Chief Officer is obliged to implement the Commission's policies as to the administration and operation of the TFS. Under s6, as I have said, the TFS is under the control of the Commission. It follows that, in acting as the chief executive officer of the TFS, the Chief Officer is under the control of the Commission. The Act does not contain a definition of "agent" or "agent of the Commission". However, given the relevant statutory provisions, it is clear that the Chief Officer must be an agent of the Commission.
I turn to the question of whether the Chief Officer is an "employee" for the purposes of s121(1). Under s10(1), the Chief Officer is appointed by the Governor. That subsection makes it a prerequisite to appointment that the Chief Officer be "a State Service officer or State Service employee". Section 24(1) provides, "Subject to and in accordance with the State Service Act 2000, persons may be appointed or employed for the purposes of this Act." Under s3(1), "employee" means "a person who is appointed under section 24". It must follow that, whether a Chief Officer is already a member of the State Service before appointment, or whether he or she becomes a member of the State Service for the purpose of being appointed Chief Officer, he or she, when appointed by the Governor under s10(1), is thereby also appointed for the purposes of the Act under s24(1). He or she is appointed as Chief Officer for the purposes of the Act subject to and in accordance with the State Service Act. There are certain independent statutory office holders for whose torts no government, body or public authority has vicarious liability: Enever v R (1906) 3 CLR 969 (constables); Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 (marine pilots). However the Chief Officer is not independent, because of the provisions of the Act. Under s11(1), the Minister may give written directions to the Commission regarding the performance and exercise of its functions and powers under the Act, and the Commission must comply with any such directions. Under s6, as I have said, the TFS is under the control of the Commission. The Chief Officer, as the chief executive officer of the TFS, must therefore be under the control of the Commission and the Minister. As a member of the State Service, the Chief Officer is obliged to comply with the Code of Conduct set out in the State Service Act, s9, and can be punished under s10 of that Act for any contravention of that Code. Having regard to the legislative provisions relevant to the Chief Officer, I am satisfied that he is a person who is appointed under s24 of the Act, and therefore an "employee" for the purposes of the Act.
I turn to the question of whether Chief Officer is an "officer" for the purposes of s121(1). There are a number of definitions relevant to this point in s3(1). "Officer" is defined to mean "a group officer, brigade chief or fire officer". A "group officer" is defined as "a person appointed as group officer of a group of brigades …". A "fire officer" is defined as "a member of the Fire Service, other than a group officer or a brigade chief, who holds officer rank". A "fire-fighter" is defined as "a member of a brigade who is not of officer rank". The opening words of s3(1) stipulate that these definitions apply unless the contrary intention appears.
If the definitions in s3(1) were applied literally, the Chief Officer would not be an "officer" because he is neither a group officer, nor a brigade chief, nor a fire officer. It is therefore necessary to consider whether a contrary intention is apparent in relation to s121. I think that is the case. The apparent purpose of the immunity provision in s121(1) is to relieve TFS personnel from liability, except in situations involving bad faith, whatever their rank or position in the chain of command. There is no reason why the Chief Officer, alone amongst the personnel of the TFS, should be personally liable for acts or omissions in good faith. And it would be absurd if the Chief Officer, the chief executive officer of the TFS, was, as a matter of law, not really an officer at all.
One of the purposes or objects of s121(1) was to exempt TFS personnel from personal liability, except in cases involving bad faith. If the immunity provision in that subsection were interpreted as applying to all other TFS personnel, but not to the Chief Officer, then he could be liable for common law torts that resulted in death, injury or damage in the course of fire-fighting, risk reduction or training operations. That is to say, he could be personally liable in situations where neither the Commission nor any other TFS personnel were liable. There is no sensible reason why such a result might have been intended. I infer that the relevant purpose or object underlying s121(1) must have been to confer an immunity on all TFS personnel, including the Chief Officer. The subsection should therefore be construed accordingly.
For these reasons, I conclude that the Chief Officer is, within the meaning of s121(1), an employee, an officer, and an agent of the Commission. It follows that the Chief Officer is entitled to the statutory immunity provided under s121(1) with respect to the liability and damage pleaded in the relevant paragraphs of the statement of claim.
Conclusion
For the reasons stated above, I determine that the answers to the questions for determination are (a) Yes; (b) Yes.
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