Legal issues for Tasmania Fire Service and Tasmania Police Michael Eburn Senior Lecturer School of Law UNIVERSITY OF NEW ENGLAND NSW 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 , 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thousands of plaintiffs in a class action seeking compensation for damage caused by the 2003 Canberra bushfires has withdrawn its claims.”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 ABC News Online 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 An action in negligence raises three questions: 1.Did the defendant owe a duty of care? 2.Was there a breach of that duty? 3.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).

Questions to ask 1.Was injury foreseeable? 2.Could the defendant protect the plaintiff? 3.Could the plaintiff protect themselves? 4.Did the defendant know of the risk of harm? 5.Would a duty impose liability with respect to the defendant’s exercise of “core policy-making” or “quasi-legislative” functions? 6.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)? A duty of care arises if the answers are YES 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 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 BetweenBob, Mary, Roger and Sue-Ellen Plaintiffs AndTasmania Fire Service, Tasmania Police, Flat Ponds Municipal Council and the State of Tasmania Defendants