Page 4809 - Week 16 - Thursday, 29 November 1990
Next page . . . . Previous page . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
the right to bring a common law action against the Crown. Some members may recall the BP tanker driver whose vehicle rolled off the Brindabella road, because the edge gave way, a few years ago. He, Mr McDonough, successfully sued the Commonwealth, as it then ran the Territory, because of the negligent roadkeeping of the then Commonwealth authority. That was a successful action, and it related to common law, tortious misfeasance and liability. None of that is altered in any way.
We are talking about another series of legal events that can be affected by statutory immunity. Important, vital and marvellous though the volunteer fire people are, they do not necessarily speak for the entire community of this south-east region. I would like to know what the rural dwellers and the farmers feel about their being excluded from the possibility of a law suit for a negligent act.
It has been implied here today that if a fire is alight and destroys property we have to pay for it. That is not the case. There is an intermediate step and a vital hurdle to get over. You have to prove negligence by the volunteer brigade. I suggest that few courts would apply a very excessive or severe test to the volunteer fire workers when they go about their functions in most emergent situations. The test of negligence and liability, as Mr Connolly and others in this chamber may know, varies by circumstance. A decision taken in the heat and fire of the moment will be looked at in that context in terms of whether it can be negligent.
So, from a litigating point of view, it would be very difficult, in my view, in many cases to prove negligence on the part of a competently trained and directed fire worker. That worker will not have the personal liability. But if some personal liability, on the scenario that Mr Connolly put, gets back to the director of fire operations somewhere, the Crown, in right of the ACT, has broad enough shoulders to accept vicarious liability for any acts that have caused property loss and other damage. That is the modern development in the country. I will not repeat it.
Mr Connolly took a point from Mr Jensen and said that the 1989 South Australian Act - I think Mr Connolly is right in pointing out that here is a recent piece of legislation compared with the traditional, old stuff - states that a person incurs no civil or criminal liability. He put to us that through process of law, with which I will not detain the Assembly, "person" may mean the Crown in the circumstances.
An earlier section in that Act says that a person must not, among other things, give a false alarm of fire or other emergencies. I do not know whether governments or the Crown ever give false alarms. There is a penalty in the Act for doing so. But there is an inconsistency in
Next page . . . . Previous page . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .