Hamcor Pty Ltd & Anor v State of Queensland

Gotterson JA and Atkinson and Mullins JJ

2 October 2015

This interesting matter arose from the contamination of a property following its immersion in contaminated fluid known as “fire-water” in the aftermath of a fire. “Fire-water” is water containing toxic fire suppressant chemicals. [3]. Proceedings were subsequently commenced against the State of Queensland for alleged negligence on the part of the Queensland Fire and Rescue Service in the course of fighting the fire. The plaintiffs also sued an insurance broker and its authorised representative for alleged failures to advise that they ought to have been named as insureds under a liability insurance policy. [5]. The claimed cost of remediation of the contaminated land was more than $9 million, many times its value. [4].

At first instance both claims were dismissed. [6]. The appellants appealed solely against the decision involving the State of Queensland. [7].

The decision at first instance

Whilst finding that QFRS owed a common law duty to the plaintiffs to take reasonable care to protect its property, which it breached, [10]–[11] the learned primary judge noted that QFRS was expressly authorised to apply water to the fire by s 53(1) of the Fire and Rescue Service Act 1990, and hence entitled to the immunity conferred by the first limb to s 129(1). [13]. In view of the scarcity of evidence, the learned primary judge took the view that she was not in a position to make findings as to causation of loss on which damages could be assessed. [14].

The appeal

On appeal the appellants had four grounds of appeal, three which are discussed below.

Ground one

The appellants submitted that the learned primary judge erred in holding that QFRS was acting pursuant to the Act and was therefore entitled to an immunity under s 129(1), when upon the proper construction of that provision, the QFRS was only entitled to immunity only where it acted bona fide and without negligence. [28]. The appellants contended that the application of water to a fire by QFRS personnel for any of the purposes listed in s 53(1) was not an act done pursuant to the Act, and therefore the immunity could not apply. [29]. The appellants relied upon Colbran v State of Queensland [2006] QCA 565, contending that statutory immunity provisions ought to be interpreted “jealously”. [31].

Noting that her Honour had evidently formed the view that the application of water to extinguish a fire is in fact a reasonable measure to protect persons, property or the environment, and, as such, authorised by s 53(1) [43], the court did not accept the appellants’ submissions, agreeing that although as a principle of statutory interpretation statutory immunity for acts done pursuant to a statute should be construed as extending only to acts directly authorised by the statute, there is nonetheless no “companion proposition, that in order to be directly authorised by a statute, an act must be specifically listed in it as authorised by it … an act will be directly authorised by a statute if it falls within a broad description of acts authorised by the statute. Such an authorisation may be in terms which permit the taking of “any reasonable measure”. [45]. (emphasis added).

Accordingly, the court’s finding was that since it was a reasonable measure undertaken for any of those purposes, the application of water to a fire was done pursuant to the Act. [46].

Grounds two and three

The appellants additionally argued that the learned primary judge erred in failing to find that the act or omissions of the QFRS in fighting the fire were “unreasonable” within the meaning of s.36(2) of the Civil Liability Act 2003; and furthermore that she failed to properly construe ss 53 and 129(1) of the Fire and Rescue Service Act 1990.

In essence, the appellants submitted that whilst it was theoretically possible that conduct may be negligent, yet not “manifestly unreasonable” in the Wednesbury sense, the learned primary judge failed to provide reasons explaining why the negligent conduct of the QFRS officers was not, at the same time, unreasonable in the Wednesbury sense. [52].

Discounting these criticisms, the court found as follows:

“it does not at all follow … that the strategy adopted by QFRS was illogical, irrational or lacking in intelligible justification. It would indeed be difficult to reach such a conclusion given her Honour’s unchallenged findings that the application of large volumes of water was appropriate at four installations or facilities.” [60].

Accordingly, the court upheld her Honour’s finding that the conduct of QFRS was not unreasonable in the Wednesbury sense. It also determined that her reasons for not so finding were adequate. [61].

The appeal was dismissed.