Queensland Fire & Rescue Authority v Hall

[1997] QSC 221

IN THE SUPREME COURT

OF QUEENSLAND

No 9952 of 1997
Brisbane

[Queensland Fire & Rescue Authority v Hall]

BETWEEN:

QUEENSLAND FIRE AND RESCUE AUTHORITY

Applicant

AND:

MS E A HALL CORONER AT GATTON AND
  RAYMOND AND PATRICIA ANNETTE FELDHAHN
  Respondents

CATCHWORDS:     CORONERS - Jurisdiction - Inquest into fires - “Cause and origin” of every fire - Whether inquiry as wide as inquest into death - Cause of the death and the circumstances of the death - Whether ruling of Coroner correct - Prerogative Order - Final relief - Coroners Act of 1958(2) ss. 7, 8, 9, 10, 43; Judicial Review Act 1991 s.43; R.S.C.(Q) O.87 r.11.

Counsel:Mr T. Matthews for the Applicant

Mr L.A. Stephens for the Respondents

Solicitors:Quinlan, Miller & Treston for the Applicant

Blake Topping, as town agents for Graham Buckley & Associates, of Gatton, for the Respondents

Hearing date:               18 November 1997

JUDGMENT - LEE J

Judgment delivered 28 November 1997

The applicant, the Queensland Fire and Rescue Authority, has applied for a prerogative order pursuant to s.43 of the Judicial Review Act 1991 quashing the decision of the respondent, Ms E.A. Hall Coroner at Gatton, that her jurisdiction pursuant to s.8 of the Coroners Act 1958 (“the Act”) to hold an inquest into the cause and origin of a fire which damaged the property of the respondents, Raymond and Patricia Annette Feldhahn, included jurisdiction to inquire into the qualifications, training, funding and experience of both the salaried and volunteer members of the Rural Fire Brigade, and for a prerogative injunction requiring the respondent Coroner to proceed with the adjourned hearing of the inquiry according to law.

Mr Matthews, who appeared for the applicant, and Mr Stephens, who appeared for the respondents Mr and Mrs Feldhahn, both agreed that s.4(4) of the Act, which provides that nothing in the Act shall limit, prejudice or otherwise affect the jurisdiction of the Supreme Court in relation to or over a Coroner or his duties, invokes the jurisdiction of this Court pursuant to ss.43, 47 of the Judicial Review Act 1991, thus giving the Court the power to entertain the application. However, both counsel agreed that, even though what is attacked is only the decision of the Coroner in the course of the hearing, to include as relevant to the inquest, an inquiry into the qualifications, experience etc. of members of the Rural Fire Brigade during the course of evidence given by such members (large numbers of whom have been subpoenaed by the Feldhahns), that decision is subject to the jurisdiction of the Court under s.43 of the Judicial Review Act 1991. I therefore do not need to consider further the question because both counsel agreed that what in substance is in issue is the true meaning of s.8 of the Act, and the extent of the jurisdiction conferred by it.

Both parties have agreed that pursuant to O.87 r.11, the Court should finally determine this matter in Chambers.  There is some urgency because the inquest is due to resume at Gatton on 4 December 1997 when large numbers of witnesses have been subpoenaed.  Mr O'Shea appeared on behalf of the Coroner to abide the order of the Court, subject to any question as to costs.  Mr Matthews stated that the applicant did not seek an order for costs against the Coroner and Mr O'Shea stated that the Coroner was not seeking any costs.  Accordingly, Mr O'Shea was given leave to withdraw.

Objection was initially taken by Mr Stephens to the relevance of ex REM 1, and para 2 of Ms Miller's affidavit, the second paragraph of para 8 and ex REM 7 and also para 10, the last paragraph said to be argumentative.  Mr Matthews did not rely on para 10 other than to the extent that that paragraph simply set out the grounds of the application for review required by s 45(B) of the of the  Judicial Review Act 1991. Mr Stephens withdrew his objection on the basis that this was the limit sought to be used by para 10. He subsequently withdrew his objection to the relevancy of REM 1. As to the second paragraph of para 8, and ex REM 7, I accept Mr Matthews’ submissions that this merely places in context the ruling the subject of this application and I overrule the objection by Mr Stephens.

Mr Matthews’ outline of submissions is marked “A”, that of Mr Stephens is marked “B”.  They are placed with the papers.  There were extensive oral submissions.

Section 8 of the Act is as follows:-

"8. Inquests into fires. Compare Q. Act, s. 7. S.A. Act, s.10(2).  (1)   A coroner shall have jurisdiction to hold and shall hold forthwith an inquest into the cause and origin of every fire whereby any property of any kind has been endangered, destroyed, or damaged, or whereby the life of man or beast has been lost or endangered–

(i)If he is of opinion that the inquest should be held; or

(ii)If the Minister directs him to hold the inquest;  or

(iii)If requested to hold the inquest by any person and upon payment by that person to the coroner of such sum as may be prescribed by the rules, or, if no such sum is prescribed, the sum of fifty dollars and in every case upon the giving, at the same time, an undertaking, under security to the satisfaction of the coroner, to pay such further costs as may be entailed in the holding of such inquest,

and the provisions of this Act shall, with and subject to all necessary adaptations, apply to any such inquest."

The argument resolved around a comparison of that section with the powers conferred by s.8 to inquire into "the cause of the death and the circumstances of the death of a person" and with various other sections of the Act. See e.g. ss. 9, 10, and 43. It was submitted by Mr Matthews that the different language in s.8, when compared with that in s.7, showed that the jurisdiction to inquire into the “cause and origin” of a fire is much more limited. Mr Stephens in substance submitted that they had the same effect.

The inquest was instituted as follows. By a request dated 23 October 1996, Mr and Mrs Feldhahn, by their solicitors, requested an inquest into a fire which caused damage to their property situated on the Gatton-Esk Road, Buaraba on 7 November 1994 (ex. REM 1 to the affidavit of Rachael Elizabeth Ryan Miller filed 6 November 1997). The Coroner decided on 13 August 1997 (ex. REM 2) to hold such an inquest pursuant to s.8 of the Act. The Coroner at Gatton further indicated that she was of the opinion that the applicant had a sufficient interest in the subject matter of the inquest to appear (s.31 and ex. REM 4).

In the request dated 23 October 1996, Mr and Mrs Feldhahn by their solicitors concluded as follows:-

“We respectfully request that an inquest into the cause and circumstances surrounding this fire be conducted at the earliest opportunity.”  (emphasis added)

The inquest apparently commenced on 6 October 1997.  See para.5 of Ms Miller’s affidavit and ex.  REM 5.  The inquest continued thereafter on 8, 9 and 10 October 1997 and was adjourned for a further five days hearing on 4, 5, 10, 11 and 12 December 1997 (see Ms Miller’s affidavit para 11).  It appears from ex. REM 2 dated 13 August 1997, that Mr Stephens alone then appeared. The Coroner agreed to hold the inquest.  Mr Stephens there submitted that:-

"If the fires are managed properly then our - our clients' orchard has been saved on previous occasions.  On this occasion there were, what can only be described as - as -  well circumstances which we feel were necessary to inquire into . .
... and it’s important, not only on this occasion but for the future."(emphasis added).

The Coroner said that there were many other things which may be helpful for the community but reference was made to the fact that there was only one other known coronial inquiry at Pittsworth into a fire which was said to have been caused by a faulty washing-machine.  On 6 October 1997 the transcript REM 5 is prefixed by a heading in the following terms:-

"In the matter of an inquest into the circumstances surrounding the cause of a fire at the property of R. and P. Feldhahn, Gatton-Esk Road."(emphasis added).

Mr Matthews submitted before me that this heading perpetuated the error which originated in the  initial request ex. 1.  On that day, Mr Stephens simply informed the Coroner of seventeen or so witnesses he proposed to call and various exhibits.  Both Mr Stephens and Mr Matthews then appeared and it seemed that the matter did not substantially proceed on that day.

During the morning of 9 October 1997 Mr Matthews stated that he did not intend to challenge the jurisdiction but submitted that if in the course of the proceedings it appeared that there was some ulterior purpose the Coroner could stop then.  Reference was made to possible civil litigation and the provisions of s.43(6).  It was pointed out that this was a private citizen's request for an inquest.  Mr Stephens responded and said that the scope of the inquiry had nothing to do with compensation which might be received in respect of the loss, and that what was important to his clients was the future.  Then at p 166 of ex. REM 7, the Coroner made the following observation:-

"Well, it seems to me that the inquiry here is into the cause and circumstances of the fire and nothing else.  I initially ruled that Mr Feldhahn and Mrs Feldhahn need not, and should not, produce their tax and financial records and in my view any questions, and I rule that any questions about their financial status or their intentions - their later intention - questions about those matters should not be allowed." (emphasis added).

As Mr Matthews pointed out before me, the words “cause and circumstances of the fire” were again wrongly used. Then in ex REM 6 on 9 October 1997, but during proceedings in the afternoon, after Mr Lyons ( the Rural Fire Warden for Buaraba) gave some evidence and after questioning by Mr Stephens as to his experience and as to whether he attended training courses or whether there were manuals on the subject, or educational training in relation to the handling of bush fires, etc, Mr Matthews objected and stated that he had looked again at s.8 which had conferred jurisdiction on the Coroner to hold an inquest only into the “cause and origin of every fire whereby property has been endangered, destroyed or damaged”. He submitted that the jurisdiction was not to inquire into the circumstances but only the cause and origin of the fire and that a wide ranging fishing witch hunt into the Rural Fire Service could not be said to be an inquiry into the cause and origin of the fire.

Mr Stephens in response referred to causation and Professor John Flemming’s work in this context. He submitted that lack of training and experience may be important factors bearing upon the cause of a fire and that it would be tantamount to blinkering the inquiry to exclude evidence of the qualification and training of the fire officers from the scope of the inquiry as to the cause of the fire. Mr Matthews referred to the distinction between s.7 and s.8 of the Act and Mr Stephens’ contention was in substance that they were of similar effect. The Coroner at 244 (ex. REM 66) made the following ruling:-

“Yes.  No, I’ll allow the - I - in my view, it’s - those questions are relevant to the cause of the fire and I’ll allow them.” 

That is the ruling the subject of the current application.  Mr Matthews informed me that the word “circumstances” in the heading on 6 October 1997 ex REM 5, was then  apparently struck out.  It appears that at that point, any previous misconception which might have been present in the Coroner’s mind was rectified.

It appears from Ms Miller’s affidavit that some 25 members of the Voluntary Rural Fire Brigades in the south east Queensland area, who at various times over a period of a fortnight attended different places in and about a bush fire, have been summoned to give evidence at the inquest. The basic objection before the Coroner and again in this Court was that the Coroner was in error in upholding the respondent’s contention that the jurisdiction which she was exercising included jurisdiction relevant to what might be described as tortious causation (243, l.15-40). It was said that the training and experience of voluntary members of the Rural Fire Brigade might be material and within the jurisdiction of the Coroner, exercising jurisdiction pursuant to s.7 of the Act, i.e., an inquest into the “cause of death and the circumstances of the death”, but not within the exercise of jurisdiction pursuant to s.8 which authorised an inquest only into the “cause and origin of every fire ...”

It is no part of the function of this Court to go into the reasons for the inquest or the purposes of Mr and Mrs Feldhahn, or what, if any, proceedings might follow. Suffice to say that quite apart from the inquest and what comes out of it, it does not prevent an action in tort against any persons responsible, for the loss and damage according to ordinary tort principles if there is evidence against persons said to be responsible, and providing causation is established according to those principles. My role is strictly to determine the scope and extent of the jurisdiction conferred on the Coroner by s.8 of the Act and nothing else. Also, the Coroner is strictly limited to the exercise of the jurisdiction actually conferred and is not enlarged beyond its terms to include an inquiry based on any wider concepts such as might be relevant to an action in Tort, unless of course the nature of the statutory jurisdiction happens to coincide with the scope of any such wider inquiry: The Queen v.  Hereford (1860) 3 EL.& EL. 115; 121 E.R. 387.

However, mention should first be made of the general circumstances outlined in the material to place the matter in context.  Exhibit 1 refers to a bush fire which was burning in forest grazing country to the west and had done so for some two weeks.  Mr Matthews informed me without objection that this fire originated many kilometres away from the relevant property.  Exhibit 1 asserts that the fire which swept down Gatton Gully in the Buaraba district between Gatton and Esk causing damage to the property of Mr and Mrs Feldhahn was started the previous night by the Bush Fire Brigade officers back burning on land to the west of Gatton-Esk Road and on the southern side of the gully.  The report refers to many other factors and circumstances and reference is made to the experience of persons fighting fires and with knowledge and experience in back burning fire breaks to prevent the spread of fire.  It was alleged that the back burning occurred but stopped some distance away despite what were said to be assurances on a number of occasions to Mr Feldhahn that Gatton Gully in the area proximate to his property would be back burned and so become a fire break.

Before the Coroner also was a report by MacLarens (Forensic) Pty Ltd, ex JB 2 dated 25 September 1996 commissioned on behalf of the respondents, expressing their opinion of the cause of the fire and what might have been done to prevent it.  The report concluded that had back burning been undertaken to Gatton Gully, any fire crossing Gap and Esk Road would have been more successfully suppressed than that which ultimately continued along Gatton Gully through the plaintiffs’ property on the eastern side of the road.

Mr Stephens basically submitted that the approach by Professor John Flemming in his book "The Law of Torts" 8th ed., dealing with causation was relevant, that the report of an expert, Nystrom, shows that the training and experience of the fire-fighting crew in undertaking back burns in the gully was a relevant and causal factor in considering the cause and origin of the fire, that there was sufficient evidence for the Court to come to the conclusion that the fire which burnt out the orchards of the respondents was set by Peter Lyons, the rural fire warden for the area and/or Jim Boyson, in their attempts to set a back burn against an earlier back burn they had done at Qualifschefskis Road. Mr Stephens informed this Court that it was not proposed to make any inquiry into the funding of the Rural Fire Brigade or into the qualifications, training and experience of either the salaried or volunteer members of the Rural Fire Brigade generally. The only inquiry he wished to make related to the training and experience of people who were involved in fighting the fire which crossed the Gatton/Esk Road and damaged the orchards of Mr and Mrs Feldhahn on 6 and 7 November 1994. He submitted that there was no distinction to be drawn between the use of "cause and origin" in s.8 of the Act and "cause . . . and the circumstances of the death" used in s.7 of that Act. He submitted that the Coroner's ruling at 244 was relevant, allowable and correct. He relied on a passage from Hart and Honore, Causation in the Law, 2nd ed, 1985 as follows:

“Whether a particular condition qualifies as a causally relevant factor will depend on whether it was necessary to complete a set of conditions jointly sufficient to account for the given occurrence.”

Basically he submitted that every event or occurrence is the result of many conditions that are jointly sufficient to produce it so that many and varied conditions may be relevant to the “cause”.  He submitted that the word “circumstances” used in respect of death and “origin” in respect of fire both relate to the context of the situation and had similar import.

Mr Matthews, in addition to submissions referred to below and mentioned earlier in these reasons, submitted that other sections of the Act above referred to and particularly s.43 when read with s.7 and s.8, demonstrated the meaning of the word “circumstances” and the considerably wider scope of the jurisdiction conferred by s.7 than that conferred by s.8 because s.43(3) contains no similar requirement relating to the cause of the fire, but rather simply requires a finding “so far as has been proved the cause and origin of the fire”. Those words are identical to those used in s.8. Likewise it was submitted that if the inquiry concerned a missing person, s.43(4) required that the finding set forth the “cause and the circumstances of the disappearance of a missing person” and other matters such as whether the missing person was alive or dead and the whereabouts of such person.

It was further said that the words of s.43(5) which prohibited the Coroner from expressing any opinion on matters outside the scope of the inquest except in the rider which in the opinion of the Coroner is designed to prevent the recurrence of similar occurrences, took the matter no further and did not enlarge the narrow scope of the words “cause and origin” of a fire. That sub-section provides that such a rider shall not be deemed part of a Coroner’s finding but it may be recorded. The contrary view is that this pointed to a wide jurisdiction under both s.7 and s.8. Mr Stephens submitted that nothing in other sections of the Act supported the view advanced by the applicant.

Mr Matthews gave as an example which he submitted supported his approach, salmonella food poisoning.  It was said that the cause of death was the poisoning but the circumstances (as in an action in tort) might include lack of proper precautions and hygiene in food preparation which allowed contamination so that training and experience of staff could be relevant to that question.

It has been a longstanding principle of interpretation  that a change of language prima facie indicates a change of intention, depending upon the particular circumstances:  see Maxwell on Interpretation of Statutes, 5th ed, pp 59, 520. It is also a principle of interpretation that the words used must be construed in their context and in the context and purpose of the Act as a whole. Both counsel stated that their searches revealed no authorities on the question of the distinction if any which exists between the scope of the jurisdiction conferred by s.7 and that conferred by s.8. Mr Stephens submitted that the words “cause and origin of every fire . . .” have been used in ancient legislation in England since time immemorial, but this of course does not advance the argument as to the true meaning and scope of those words.

Because various sections of the Act were referred to as bearing upon this issue, it is necessary to set them out. Section 7 provides as follows:-

"7. Inquiries by coroners. Compare Q. Act, s. 5. NZ Act, s. 5. S.A. Act, s.10.           (1) A coroner shall have jurisdiction to inquire and shall inquire forthwith whether the death has occurred and into the cause of the death and the circumstances of the death of a person where he is informed that the person is dead and–

(a) In his opinion there is reasonable cause to suspect that the person–

(i)Has died either a violent or unnatural death (but so that the meanings of the terms 'violent' and 'unnatural' shall not be affected by anything contained in the subparagraphs following);

(ii)Has died a sudden death of which the cause is unknown;

(iii)Has died in any circumstances of suspicion;

(iv)Has died by drowning;

(v)Has died while under an anaesthetic in the course of a medical, surgical, or dental operation or operation of a like nature;

(vi)Has died but no certificate of a medical practitioner has been given as to the cause of death;

(vii)Has died not having been attended by a medical practitioner at any period within three months immediately prior to his death;

(viii)Has died within a year and a day from the date of any incident where the cause of the death is directly attributable to such incident and where, if the death had occurred immediately thereafter, the death would have concerned the coroner;  or

(ix)Has died in such circumstances as to require the cause of death or the circumstances of death or both to be ascertained or more clearly and definitely ascertained; or

(b) That the person has died within the State while detained in any prison or mental hospital;  or

(c)  In his opinion the person has died within the State in such a place as to require that inquiry;  or

(d)  The Minister has directed him to so inquire (the Minister being hereby empowered to so direct at any time when the Minister is of the opinion that the person has died in such a place or in such circumstances as to require such inquiry):

Provided that a Coroner shall not inquire or hold an inquest into the death of–

(i)Any prisoner who dies in any prison of which he is the visiting justice;  or

(ii)Any patient who dies in any mental hospital to which he is an official visitor.

(2)  Where under this Act a coroner inquires into any death, he may from time to time make or cause to be made such inquiry, investigation, inspection, examination, and test, or any of these, as he considers fit."

Then follow subsections (3) Extent of jurisdiction, and (4) Inquests on death, which were not said to be directly relevant to the current matter. Section 9 deals with an inquest where a body has been destroyed or cannot be recovered and confers power on the Coroner to conduct an inquest "where a coroner has reason to believe that a death has occurred in such circumstances that an inquest into the death ought to be held." Section 10 relating to inquiries respecting missing persons confers jurisdiction on the Coroner who must forthwith “inquire into and shall inquire forthwith into the cause and circumstances of the disappearance of such missing person and into all such matters and things as will or will be likely to reveal whether such missing person is alive or dead . . .".  (emphasis added)

Section 43 then provides –

"43.  Finding of coroner.  (1)  After considering all the evidence before him at the inquest the coroner shall give his finding in open court.

(2)  Compare Q. Act, s.6(1)(b).  N.Z. Act, s.24(1).  S.A. Act, s.19 (b).  Where the inquest concerns the death of any person, the finding shall set forth–

(a)  So far as has been proved–

(i)Who the deceased was;

(ii)When, where, and how the deceased came by his death;  and

(b)  The persons, if any, committed for trial.

(3)  Compare Q. Act, s.7(4). S.A. Act, s.20(2).  Where the inquest concerns a fire, the finding shall set forth –

(i)So far as has been proved the cause and origin of the fire;  and

(ii)The persons, if any, committed for trial.

(4)  Compare Q. Act, s.6c(5).  Where the inquiry concerns a missing person the finding shall set forth –

(a)  So far as has been proved –

(i)The cause and circumstances of the disappearance of such missing person;

(ii)Whether such missing person is alive or dead;  and

(iii)If such missing person is alive or likely to be alive, the whereabouts of such missing person at the time of the inquiry;

(b)  The persons, if any, committed for trial.

(5)  Compare Imp. Coroner's Rules, 1953.  The coroner shall not express any opinion on any matter outside the scope of the inquest except in a rider which, in the opinion of the coroner, is designed to prevent the recurrence of similar occurrences.  A rider shall not be or be deemed to be part of the coroner's finding but it may be recorded if the coroner thinks fit.

(6)  No finding of the coroner may be framed in such a way as to appear to determine any question of civil liability or as to suggest that any particular person is found guilty of any indictable or simple offence."  (emphasis added)

It may be noted that s.10 of the Coroners Act 1935-1952 (S.A.) which was in force when the Queensland Act commenced on 30 October 1958, and which is referred to in the headnotes to both ss. 7 and 8 of the Act, provided for a broadly similar distinction as follows–

“Section 10(1)  Where a coroner has reasonable cause to suspect that–

(a)any person has died within the State a violent or unnatural death or a sudden death of which the cause is unknown;  or

(b)any person ordinarily resident within the State has died outside the State a violent or unnatural death or a sudden death of which the  cause is unknown;

(c)any person whose dead body is within the State has died outside the State a violent or unnatural death or a sudden death of which the cause is unknown;  or

(d)any person has died within the State in any prison or while detained in any hospital for the insane or in any such place or under any such circumstances as to require an inquest under any Act,

the coroner shall have jurisdiction to enquire whether the death has occurred and into the manner and cause of the death.

”(2)  Every coroner shall have jurisdiction to inquire into the cause and origin of any fire whereby the life of man or beast has been lost or endangered, or whereby any land or chattels or any other valuable effects have been endangered, destroyed, or damaged–

(a)if he is of opinion that the inquiry should be held;  or

(b)if the Attorney-General directs him to hold an inquest;  or

(c)if a request is made pursuant to section 72 of The Fire Brigades Act, 1913, or section 27 of the Bush Fires Act, 1933.”

Yet s.12 of the Coroners Act 1975 (S.A.), which apparently replaced the 1935 Act, then grouped the jurisdiction as to deaths and fires in the one section, authorising an inquest “to ascertain the cause or circumstances of “(a) the death of any person by violent, unusual or unknown cause,” or “(f) a fire or accident that causes injury to person or property.”  Apparently that was a deliberate change from the earlier provision, for whatever reason, but no change has occurred in Queensland.  This gives some support for the notion that the scope of the inquiry under each is different.

The words “cause of the death and the circumstances of the death” in s.7 may be considered in the light of s.43(2) which provides that the findings in relation to an inquest concerning the death of any person shall set forth who the deceased was and “when, where, and how the deceased came by his death”. I accept Mr Matthews’ submissions that this requirement demonstrated the width of the meaning of the word “circumstances” and the considerably wider scope of the jurisdiction conferred by s.7 than that conferred by s.8. There seems to be little doubt that the scope of the inquiry under s.7 is wider than that under s.8. So with an inquiry under s.10. The very terms of s.7 itself, particularly s.7(1)(a) and s.7(2) are obvious pointers to a wider ranging inquiry. So also with s.43(2) when compared with s.43(3).

It may be noted that s.7 first refers to “the cause of the death” itself as the ultimate focus of the inquiry, i.e., the death, but there is the added requirement of “... and the circumstances of the death”. The death is the actual event and the cause of it is the process of happening which brought the death about and is the cause of it, whereas “the circumstances” obviously covers a much wider area of inquiry as the word itself conveys and as the various sections of the Act referred to indicate. Circumstance means “time, place, manner, cause, occasion, etc, surroundings, of an act or event;” Concise Oxford Dictionary.

On the other hand, s.8 refers to the “cause and origin” of every fire “whereby any property has been endangered, destroyed, or damaged ...” and not to the “cause of any damage”, or as the case may be, the damage being the ultimate event necessary to found jurisdiction to hold the inquest under s.8. This of course is not necessarily conclusive one way or the other but, because “whereby” means “in consequence of which, or by means of which”: Concise Oxford Dictionary.  However, in context, the words “cause and origin”, linked as they are, and in the place where they are situated in the section, suggest that both words and what they mean, either singularly or together, relate to what occurred at the origin of the relevant fire, i.e., at its beginning or origin which means “the derivation, beginning or rising or coming from something, person’s ancestry, source, starting-point,”: Concise Oxford Dictionary.

The “cause” of the fire whereby damage resulted must refer to the agency or phenomenon which started it.  The cause may be the lighting of grass or brush by a person, or by allowing a bush barbecue or camp fire which had not been properly extinguished to escape thus causing the fire in question, or a cigarette carelessly thrown into the grass or a lightning strike or any other “direct” cause of the fire.  The origin of the fire is simultaneous with its cause, and by this is meant the fire “whereby” damage ultimately resulted.

It is therefore a matter for the Commission to inquire into and determine if she can on the evidence, where the fire which she may find damaged the Feldhahn’s property originated.  That is, who started it and who caused it to start.  It may be possible to say that where a fire which originated some distance away and was not caused by the persons under consideration, was extinguished or which appeared to burn out, but which smouldered and started up again of its own accord so that it became reactivated and caused the damage, that particular fire originated where it was reactivated.  The cause of it reactivating may have been due to factors beyond the control of anyone, or it may have been due to the negligence of persons who were under a duty (if any) to fight the fire and thought it was extinguished and left the area, just as a person who negligently failed to properly extinguish a camp fire which got away.  In that event, the negligence of such persons might be said to be a cause of the discrete fire which reactivated.

As indicated, it is a matter for the Coroner to determine, if she can, which fire caused the damage to the Feldhahn’s property, i.e., whether it was the same fire which originated some kilometres to the west and which merely crossed the road, entered their property and caused the damage as some of the evidence suggests, or whether it originated as a result of back burning deliberately started some little distance away by the Rural Fire Brigade and got away and caused the damage (again as some of the submissions suggest)or whether it was another fire which originated somewhere else (and its cause) if the cause can be established. Of some note are the provisions of s.43(5) which prohibit the Coroner from expressing any opinion on any matter outside the scope of the inquest and s.43(6) which prohibits any finding of the Coroner to be framed in such a way as to appear to determine any question of civil liability or as to suggest that any particular person is guilty of any indictable or simple offence. Mr Matthews submitted that this is some pointer to the fact that an inquiry into possible negligence which is necessary to found a civil action in tort is beyond the scope of the inquiry under s.8.

It is difficult to say that a failure to do relevant back burning at a material time (as is suggested in the material) to prevent a pre-existing fire, not caused by the Rural Fire Brigade members, from spreading, or failure to engage in alternative conduct which might have prevented the ultimate damage, is a relevant “cause” of the fire or relevant to its origin, even though it may be said to be a “cause” of the pre-existing fire continuing, but that does not seem to be what the section is directed at. Had other conduct occurred which would have prevented a fire which was caused and which originated elsewhere from continuing on and doing the ultimate damage, this would in the law of tort have amounted to an intervening act which broke the chain of causation, so interrupting the initial cause, but failure to act cannot be said to go to the initial “cause and origin” of the fire. In circumstances where there is a duty to act, a failure to act may, in the law of tort, constitute a cause of the injury or damage suffered, but it seems to me that it cannot, within the meaning of s.8 be said to be a “cause” (or origin) of the fire unless those who failed to act caused the fire in the first place and which they failed to extinguish or render harmless.

The inquiry seems to be limited to who or what caused the relevant fire in the first place. If it was caused (and thus originated) by some act of the Rural Fire Brigade, then it may be said that the prevailing circumstances at the time it was started by them, as well as their training and experience, are potentially relevant to the cause of the fire, e.g., if the relevant fire was started in dangerous and windy and dry conditions, without adequate equipment or manpower, and by persons of inadequate training and experience such that more experienced persons would not have started the fire in those conditions, those factors may be capable of being relevant to the cause of the fire in the first place. Otherwise it is difficult to see how their training and experience or what they used in their efforts to control the fire could be said to be a “cause” (and origin) of it, within the meaning of s.8. As indicated, both concepts relate to the time when the relevant fire actually started. If the circumstances justify an inquiry into the training and experience of those actually engaged in the relevant fire, the Coroner will of course be well aware of and heed s.43(6) of the Act.

Paragraph 1 of the summons is accordingly answered as follows:-

“If the Coroner finds that the fire which ultimately damaged the Feldhahn’s property  was lit by members of the Fire Brigade, i.e., that they were a cause of it and it originated by their act, then an inquiry into the training and experience of people who were involved in fighting the fire which crossed the Gatton Esk Road and damaged the property of Mr and Mrs Feldhahn on 6, 7 November 1994 is relevant and within the scope of the inquiry.  Otherwise those matters are irrelevant and outside its scope.”

I set out paragraph 6 of Mr Stephens’ outline he handed to this Court to show the limit of any permissible inquiry he proposes to take, depending upon the ruling of the Coroner, having regard to the above reasons:-

“It is not proposed to inquire into the qualifications training and experience of both the salaried and volunteer members of the Rural Fire Brigade.  The only inquiry is to the training and experience of the people who were involved in fighting the fire which crossed the Gatton Esk Road and destroyed the orchards of R & P Feldhahn on 6 and 7 November 1994.”

I will now hear argument as to costs.