Legal issues for Tasmania Fire
Service and Tasmania Police
Michael Eburn
Senior Lecturer
School of Law
UNIVERSITY OF NEW ENGLAND NSW 2351
21 January 2010
Why do people take legal
action?
• What do you think they want?
– Four themes motivate a legal action, they are:
• To prevent similar incidents occurring in the future;
• To know and understand what happened and why;
• To obtain monetary compensation; and
• To hold individuals and institutions accountable.
(Charles Vincent, Magi Young and Angela Phillips ‘Why
do people sue doctors? A study of patients and
relatives taking legal action’ (1994) 343 The Lancet
1609-1613, 1612).
What action gives the
desired remedy?
• Administrative law
– Review of decision making.
• Criminal law
– Leads to punishment – fines and gaol.
• Inquests and inquiries
• To investigate what happened.
• Tort
– Money compensation for loss
– EG negligence, misfeasance in public office,
nuisance.
Who’s really before the
court?
• Who’s really the plaintiff?
Insurance company pulls out of bushfire compo
case
“An insurance company representing thousands of
plaintiffs in a class action seeking compensation for
damage caused by the 2003 Canberra bushfires has
withdrawn its claims.”
ABC News Online 11 December 2009.
• Who’s really the defendant?
See Nelligan v Mickan & Mickan [1998] SASC 6935;
Doubleday v Kelly [2005] NSWCA 151.
Source of law
• Common (or judge made) law.
• Statute (or Parliament made) law.
• Statute law ‘outranks’ common law, but often they
are not in the same area (even if they look like they
are).
• More often than not, statute law works alongside
common law, rather than changing or overruling it.
• Working out how they sit together is not easy (even
for High Court judges).
Tort - Negligence
1.
2.
3.
An action in negligence raises three questions:
Did the defendant owe a duty of care?
Was there a breach of that duty?
Did the breach cause the plaintiff’s damage?
Fire Service Act 1979 (Tas)
• S 29(2) … the brigade chief of a brigade
shall, on receipt of a call to a fire or
potential fire, immediately after the first
alarm, 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.
Can we sue?
• Just because the act says ‘must’ or ‘may’ or
‘shall’ does not mean someone can sue if
you don’t.
• The statute is not defining ‘duty of care’ for
the common law concept of negligence.
• To put that another way, a statutory duty
may not = duty of care.
• A ‘duty of care’ must be consistent with the
powers given to, and the duties imposed,
on the authority, so always start with the
Statute.
Stuart v Kirkland-Veenstra
[2009] HCA 15
• There can’t be a duty to act where there is no
power to act.
• The police were under no duty to restrain a person
when they had no power to exercise in the
circumstances.
• Generally no duty to protect others from harm,
particularly harm from themselves.
• Other policy considerations, such as respect for
autonomy, have to be considered.
• [See also Tandara Motor Inn v Scott [2009] HCA 47
(on appeal from Supreme Court of Tasmania)].
Important Factors
• What powers does a fire service have?
– To enter premises, with force if necessary and take other
actions necessary to protect life and property including
cutting off utilities and prohibiting access to areas (Fire
Service Act 1979 (Tas) s 29(3)).
• Is the statutory power granted for the benefit of the
community (Barclay Oysters v Ryan; Capital and
Counties) or for individuals?
• Control- the greater the degree of control over the
risk, the higher the duty (Crimmins; Pyrenees Shire
Council v Day).
A duty of care arises if the
Questions to ask
answers are
1.
2.
3.
4.
5.
6.
Was injury foreseeable? YES
Could the defendant protect the plaintiff? YES
Could the plaintiff protect themselves? NO
Did the defendant know of the risk of harm? YES
Would a duty impose liability with respect to the
defendant’s exercise of “core policy-making” or
“quasi-legislative” functions? NO
Are there any other reason to deny the existence
of a duty of care (for example, the imposition of a
duty is inconsistent with the statutory scheme)? NO
Civil Liability Act 2002 (Tas)
Section 38
a) the functions required to be exercised by the
authority are limited by the financial and other
resources;
b) the general allocation of resources is not open to
challenge;
c) The court must consider the whole range of
functions that the authority has to perform.
Civil Liability Act 2002 (Tas)
Section 40
a) an act or omission of the authority does not
constitute a breach of statutory duty unless the
act or omission was in the circumstances so
unreasonable that no authority having the
functions of the authority in question could
properly consider the act or omission to be a
reasonable exercise of its functions.
[Similar provisions in ACT, NSW, Qld, Vic and WA].
Summary – duty of care
• A statutory authority, CAN owe a duty of care.
• But – must be consistent with the statute
• The exercise of ‘quasi-legislative’ powers are
beyond judicial review and cannot be subject to a
duty of care, neither can decisions regarding ‘… the
raising of revenue and the allocation of
resources…’
Breach of duty
• Duty is only to act as the ‘reasonable’ defendant.
• It is not a duty to guarantee safety.
• The reasonable defendant is not the average
defendant – a legal fiction.
• Be careful not to apply the ‘retrospectoscope’
Wyong Shire v Shirt
(1980) 146 CLR 40 [14]
... the reasonable man's response calls for a
consideration of the magnitude of the risk and the
degree of the probability of its occurrence, along with
the expense, difficulty and inconvenience of taking
alleviating action and any other conflicting
responsibilities which the defendant may have.
Rosenberg v Percival,
(2001) 205 CLR 434 at [16]
"In the way in which litigation proceeds, the conduct
of the parties is seen through the prism of hindsight.
A foreseeable risk has eventuated, and harm has
resulted. The particular risk becomes the focus of
attention. But at the time of the allegedly tortious
conduct, there may have been no reason to single it
out from a number of adverse contingencies, or to
attach to it the significance it later assumed. Recent
judgments in this Court have drawn attention to the
danger of a failure, after the event, to take account of
the context, before or at the time of the event, in
which a contingency was to be evaluated …”
Gardner v NT
[2004] NTCA 14
... this Court must be careful not to impose
unreasonable expectations and unreasonable duties
which are based more on hindsight and a lack of
appreciation of the practicalities and difficulties that
exist … than a realistic assessment of the care which
a reasonably prudent person would exercise in these
circumstances.
Vairy v Wyong Shire Council
[2005] HCA 62
The duty of care which a council owes … is a duty
which is not limited to taking reasonable care to
prevent one particular form of injury associated with
one particular kind of … activity.
Civil Liability Act 2002 (Tas)
S 11: The Court must look at:
(a) the probability that the harm
would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions
to avoid the risk of harm,
(d) the social utility of the activity that
creates the risk of harm.
Summary – duty of care
• A statutory authority, CAN owe a duty of
care.
• But – must be consistent with the statute.
• The exercise of ‘quasi-legislative’ powers
are beyond judicial review and cannot be
subject to a duty of care, neither can
decisions regarding ‘… the raising of
revenue and the allocation of resources…’
Damage
• Did the actions/failure cause the damage?
• What difference would it have made if some
other action had been decided upon?
Our scenario
• Can you apply these principals?
• Do the defendants owe a duty of care to the
plaintiff?
• Did they cause the damage?
• NOTE: Legislation impacts on the liability of
volunteers and organisations that have
volunteer members (Civil Liability Act 2002
(Tas) s 47 and Fire Service Act 1979 (Tas) s
121). We need not concern ourselves with
those provisions here (we’ll get back to
them shortly).
For hearing
In the Supreme Court
of Tasmania
Between
Bob, Mary, Roger and Sue-Ellen
Plaintiffs
And
Tasmania Fire Service,
Tasmania Police, Flat Ponds
Municipal Council and the
State of Tasmania
Defendants