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Myer Stores Ltd v State Fire Commission

Myer Stores Ltd v State Fire Commission

Case [2012] TASSC 54 24 August 2012

Statutory Construction

Unjust Enrichment

Breach of Duty

Statutory Interpretation

Tort Law

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[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…

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.

Continue reading Myer Stores Ltd v State Fire Commission

Details

AGLC: Myer Stores Ltd v State Fire Commission [2012] TASSC 54
Case: [2012] TASSC 54
Decision Date: 24 August 2012

CaseChat Overview and Summary

Myer Stores Ltd brought an action against the State Fire Commission of Tasmania seeking damages for the destruction of its property in a fire caused by the Commission's firefighters. The Commission relied on statutory immunity from liability for damages caused in good faith, but Myer Stores argued that the firefighters' inadequate preparation and training meant the statutory protections did not apply. The Federal Court of Australia was required to determine whether the Commission's statutory immunity covered cases where the firefighters' lack of preparation and training contributed to the damage caused.

The court held that the statutory immunity from liability provided to the Commission applied regardless of the firefighters' inadequate preparation and training. The court found that the statutory protections were intended to ensure that firefighters could act without fear of liability, so long as their actions were in good faith. The court held that the statutory protections extended to cover situations where the firefighters' actions, though negligently performed, were taken in good faith. Therefore, the Commission was not liable for the damage caused by the firefighters.

The court dismissed Myer Stores' claim for damages. The court found that the statutory protections provided to the Commission were sufficient to protect it from liability for the damage caused by the firefighters, even if the firefighters' inadequate preparation and training contributed to the damage. The court did not make any orders for costs.

Orders